Most Tested Bar Exam Rules: Evidence

hey guys Michael here co-founder of stood a kata in today's video I just want to briefly go over the most tested rules and evidence at least you're sitting for the uniform bar exam and taking the multi-state essay exam these are going to be your must know rules and evidence before jump into that just want to quickly mention that if you have more interest in learning about the most frequently tested rules for each subject of the bar exam highly recommend that you check out our top 120 list took us over a thousand hours to compile that project for you guys and you can download it right now for free there's a link in the description if you want to learn more ok but in today's video just want to focus on evidence so what are the most tested rules in evidence over the last 20 plus years consistently the most tested rules have been relevant character evidence and hearsay those are gonna be your big three must know rules and evidence ok so let's take a step back and think about evidence from from the big picture alright evidence is unique in the sense that I can tell you right now what you're going to be looking at when you take your evidence essay on the multi-state essay exam if it is indeed tested on B as the evidence question is always formatted the same way what you're gonna have is obviously your fact pattern but you're called the questions gonna be a little bit different than most cause of questions gonna be a little bit longer a little bit more detailed which for most of you is good news it's gonna be very direct and tell you exactly what you're looking for on them on the call to the question in your evidence section it's going to give you four or five maybe six pieces of evidence and it's gonna ask you to determine whether each piece of evidence is admissible or inadmissible it's going to ask you to play judge and look at different pieces of evidence and determine whether or not it can be admitted into court I like to think of this as hurdles that attract me right this is how I describe evidence in the big picture to students were just being introduced to evidence what you should think about it as if you've ever been to a high school track meet or if you watch the Summer Olympics and you see hurdlers what happens is obviously there's a track and there's normally eight lanes and you have the runners lineup they blow the horn or the gun whatever it is and your runners start to run around but what's different about hurdles as they have these barriers on the track and the sprinters the runners have to jump over each of these hurdles as they make their loop around the track until eventually they get to the end cross the finish line whoever finishes first whatever that's the winner so how it's this like evidence imagine that each one of those runners is a different piece of evidence and imagine that the hurdles are your federal rules of evidence and imagine that crossing the finish line is the equivalent of being admitted into court that's what an analysis on a evidence essay exam is going to look like you have all these pieces of evidence running around the circle they're trying to get over all of these hurdles and along the way a lot of these hurdles the Federal Rules of Evidence are going to knock pieces of evidence out and they're not going to make it to the finish line they're not going to make it over every hurdle that they have to to be admitted into court to cross that finish line and be admitted and that's obviously the goal for any piece of evidence it wants to make it around each hurdle so that it can get admitted okay so and depending on what piece of evidence the type of evidence there's gonna be different hurdles different steps that they have to overcome in order to be admitted but one hurdle is pretty universal for every piece of evidence and it's almost always an issue and that's why it's one of the most tested rules and that is relevance relevance is always going to be one of your most tested rules and in fact on your essay exam you should almost always be discussing relevance for every piece of evidence it's always going to be your first hurdle that a piece of evidence has to overcome in order to be admitted so what is relevance pretty easy analysis actually most of the time is going to be very short and to the point remember you're doing this for each piece of evidence the Bar Examiners I don't know why they always want to see that you at least recognize that you first have to establish that each piece of evidence is relevant before you talk about different hurdles different rules so for relevance to determine whether or not a piece of evidence is relevant you have to determine whether it is probative and material two elements to be relevant so what does it mean to be probative if evidence has any tendency to make a fact more or less probable it is probative next you have material if that fact is of consequence in determining the outcome of the action then it is material okay so let's use an example here to illustrate that I'm so imagine that we have a typical breach of contract action run-of-the-mill breach of contract and the defense the defendant wants to prove that the contract was written in blue ink that's what the defendant wants to do so to accomplish this the defense calls a witness to take the stand at trial and so this is a secretary that was there during the formation of the contract and they ask this witness on the stand the defense does what color was the contract written in and she says blue contract was written in blue ink defense asks how do you know that the contract was written in blue ink and she says it was raining that day okay let's think about this hat she says that the contract was written in blue ink because it was raining that day is this probative does her testimony that it was raining that day have any tendency to prove that the contract was written in blue ink visited in deep tendency to prove that the fact that the contract was written in blue ink as more or less probable it does not right that is not probative that would be objected to and the judge would throw that out there's no probative value there the fact that it was raining that day doesn't have any tendency to prove whether or not the contract was written in blue ink that fact whether the con was written in blue ink does not become more or less probable based on whether it was raining that day there's no connection between those two things so it is no pro to bali gets thrown out objection sustained so the defense tries again defense asks the witness again what color was the contract written in same answer says it was written in blue ink asks how do you know this this time she says I was there I saw it with my own eyes I remember that the contract is written in blue ink now is her answer probative yes eyewitness testimony is almost always going to be probative the fact becomes more probable now the fact that the contract was written in blue ink becomes more probable from her testimony that she saw with her own eyes that the contract was written in blue ink that is probative so the next question is is it materially do we care whether the contract was written in blue ink is that a fact that is of consequence in determining the outcome of the action I don't know about you guys but from my understanding of article 2 the Uniform Commercial Code all the common law and case law I've ever read about contracts I've never seen but the color that the contract is written in would affect the outcome of whether or not it was a valid enforceable agreement so the fact that she's saying that the contract was written in blue ink is not of consequence in determining the outcome of the action we don't care if the contract is written blue ink reading yellow ink green ink doesn't matter so in that sense it might be probative but now it's not material so it's still not relevant so remember relevance you need probative and material and of course we could change that back time right you could always change facts and make the color of the contract probative and material I'm sure there's a way that you could rearrange facts to do that but the typical run-of-the-mill breach of contract case the color of the ink the contractors written in is usually not going to be of consequence in determining the outcome of the action so that is relevance and remember the key with relevance that you have to remember is you're going to want to talk about that from every single piece of evidence and remember and you're called the question they're going to give you four or five maybe six different pieces of evidence it's gonna be repetitive but it's good form to do it to make sure that you're racking up your points for each piece of evidence you can you say this is relevant because it's probative and material because right you run through each one and talk about whether it's probative in material and quick hint to you all nine times out of ten it's going to be relevant and to be probative right the threshold is 1% to be material it's 1% if there's any tendency any tendency that it that the evidence makes the fact more or less probable even 1% you know 1% usefulness you can think of the utility of the evidence even if it's one person a useful improving a fact to be true then it's considered probative same with material if it has any tendency you know to be of consequence in determining the outcome of the action even if it's the smallest little bit it's gonna be considered material so it's a very low threshold when you're determining relevance as yours I most of the time you're probably gonna find that evidence is indeed relevant so giving over that first hurdle is relatively easy for most pieces of evidence and that is again what you're gonna want to do for each piece of evidence ok it's not about relevance pretty straightforward so related to relevance is the idea of character evidence which just so happens to be another one of the top three most tested rules and evidence and character evidence is a little bit tricky right this is a big decision tree and I will at some point make this decision tree for you like I did for contracts and put that link in the description so you can see it there because talking it out it's always harder than when you can see it visually because of the nature of character as an analysis it's just such a decision tree that can go in different directions depending on the facts that you're giving but just an overview character evidence right so what is the point of character of its why do we have this in a way it's related to relevance you how probative is character evidence really how material is character evidence really you know how was the value of somebody's character trait in determining the outcome of an action you know does the fact that someone's a violent person or a dishonest person or a good person or a bad person at any tendency to prove that certain facts are either more or less probable you know that's what character evidence is trying to grapple with this idea of you know how probative and relevant is it really and does the danger of unfair prejudice really outweigh that is what courts have grappled with over time with character evidence and the reason that we have rules regarding character evidence is because it's all about prejudice to the jury we don't want juries to base verdicts on character traits right we want them to analyze most of the time as a general rule as a general rule we want juries to base their verdicts on the facts and evidence that's directly related to the case at hand we it's a slippery slope if you start to allow a lot of character evidence to come in right it's easy to prejudice and inflame a jury when you start talking about the type of character a person has right and that is why all of the rules of character evidence have been developed around this idea and you can imagine a situation imagine if we had no character evidence rules right anytime somebody was on trial for anything criminal civil imagine though a criminal case we can imagine how out of hand it could get if the prosecution was able to bring in any type of character evidence they wanted whenever they wanted right anytime you need defendant was on trial for anything the prosecution would just look into their past find every little tiny thing that they've ever done wrong and start just piling it on at trial by the end of it the jury would just you know he has no chance you're just gonna prejudice the jury so much with things that could possibly be totally irrelevant to the case at hand which is why it's kind of a relevance issue as a whole but aside from all of the theory of character evidence in the mumbo-jumbo and that's like just tell me what I need to know man pass the bar exam if evidence is tested so what you need to know primarily about character evidence and I can't I'm not gonna go into all the black letter law here but to approach a character evidence essay when you spot that character evidence is likely an issue you need to ask yourself three questions first you need to ask yourself what is the type of character of evidence being presented am i dealing with opinion testimony reputation in the community testimony am i dealing with a specific instance of conduct that's your first thing that you have to establish the next question is going to be is this being introduced to show propensity or is it being introduced for some other reason it's gonna be question number two question number three that you just need to be cognizant up is this a civil case or a criminal case because similar to contracts with UCC versus common law the rules are gonna be a little bit different if you're dealing with a civil case versus a criminal case so this is your big picture starting with that's that's the flow of an analysis those are the three questions that you need to think about so let's go back and talk about those a little bit more so your first question is what type of character evidence is being presented um so again you have a pinyon testimony reputation testimony and specific instances of conduct so opinion testimony would be a witness getting on the stand and saying in my opinion I think Johnny is a violent person you know it's just my opinion of them I've known him for some time I just think in my opinion he's violent that's opinion test my reputation testimony be witness on the stand says everyone knows that Johnny's violent right he's had that reputation since we've been kid the community everyone knows he's violent that's reputation testimony and then you have specific instances of conduct that would be like a witness on the stand saying I saw Johnny get into a bar fight last weekend right a specific instance of conduct so those are your three types and the rules regarding character evidence the admissibility of character evidence will change slightly based on what type of evidence you're dealing with so you need to identify is this cat is this reputation and opinion testimony or is this a specific instance of conduct once you establish that in your head as you're outlining your answer the next thing that you need to think about is propensity right and this is the big one this is where I see lots of mistakes happen so I want to say this carefully because this is important so when you're determining whether character evidence is being offered for propensity purposes you have to ask yourself why is whoever's introducing this right it could be the plaintiff prosecution or the defendant why is this being introduced is this being introduced to show that the defendant has the propensity to commit the crime in question or the wrongdoing in question or is it being admitted for some other reason so let's just think about criminal cases first cuz that's that's a little bit easier to visualize I think so in a criminal case if I'm going to introduce character evidence right am i introducing this evidence and say it's an evidence of a violence character trait right and and say that the criminal defendant is on trial for murder some violent crime am i introducing this evidence to show that because this defendant is a violent person he has the propensity to commit murder if that's what I'm doing there's gonna be a lot of rules regarding how I can do that and it's generally inadmissible it's generally even in civil and criminal cases at the general starting point rule is introducing character evidence for propensity purposes is inadmissible we think that's just gonna prejudice the jury too much so the starting point rule is it's inadmissible you can't for a murder suspect that's on trial you can't say because he is violent generally you can't say because he is violent he has the propensity to commit murder that's not allowed but the but the the exception here where a lot of people mix this up is if it's not being introduced for propensity purposes and this is where mimic comes in if you remember from law school you've probably heard this acronym mimic which stands for motive or opportunity intent absence of mistake identity common plan or scheme if you're introducing character evidence to show any of those things you're not introducing into show that the defendant has the propensity to commit the crime in question you're offering it to show motive or opportunity you are intent or identity or a common plan or scheme or absence of mistake any of the mimicked reasons then it's going to be admissible generally it's going to be admissible as long as you can prove that specific instance by a preponderance of the evidence and if you can show that the probative value of it substantially outweighs the danger of unfair prejudice to the jury then you're allowed to bring that in to show motive or opportunity or any of those mimic rules right so the example there would be while you can't bring in evidence of a violent character trait to show propensity to commit the crime say that we have say sing we'll stick with the same example so we have somebody on trial for murder say it's on trial for murdering their spouse so the prosecution wants to bring evidence that this that this defendant was having an affair that he was cheating on his spouse and so his plan was to murder his so he could run off with this new woman that he's having an affair with this is there this is their motive for the case he wanted to get rid of his wife so he could run off with his new affair woman right can they introduce evidence of the affair which is a specific instance of conduct to show his motive or to show his plan and the answer is maybe yes right the judge will have to look at that and say can first can they prove this affair by a preponderance of the evidence second does the probative value of this affair out substantially outweigh the danger of unfair prejudice to the jury and if he finds that indeed the they can prove the affair by preponderance of the evidence and that there's not that risk of prejudice to the jury then it can come in because they're not introducing it for propensity purposes they're not saying because he's a cheater because he's a liar because he's a scumbag person because he's having an affair that means he has the propensity to commit murder they're not saying that they're not saying because he's a bad person because of this character trait he has the propensity to commit murder the prosecution is saying because of this affair he now has a motive to kill his wife you have to recognize that distinction because generally that's going to be admissible again as long as you show preponderance of the evidence and you know it's not substantially you know an unfairly prejudicing the jury if the probative value outweighs that risk of prejudice to the jury then it can come in so that's the main thing with character evidence that you have to think about which is why so that's your second question right are we dealing number one what type of character evidence is this because the rules are going to change a little bit depending on what type it is number two and the big one is is this being introduced for propensity or for some other reason because it's being introduced for some other reason than propensity that it's generally allowed you know you don't have to go through the whole character analysis that you might have to go through if it's being introduced for propensity purposes because remember if it's a being introduced or propensity purposes it's generally inadmissible okay and again the character evidence analysis is such a decision tree that I think it's actually gonna be better for you if I illustrate that with the document that you can download so I'll get on that and put that in the description a link to that so you can see really how the analysis would flow from those three questions because it's gonna change so much I don't think it would be good for me to sit up here and try and talk you through it I think you really need to see it so I'll go ahead and do that after I post this and try and get that up soon so you guys have that to reference but that is in a nutshell the main things room with character evidence and the main mistake I see made in a character evidence analysis is forgetting to think about why this is being introduced is this being introduced to show propensity or is this being introduced to show a mimic reason motive opportunity and tent absence of mistake identity or common plan or scheme it's being showed to show any of those mimic reasons it can probably come in using run through those two requirements and play judge and see do that balancing test can they show by preponderance of the evidence if so it's gonna be allowed to come in okay that's enough on character evidence let's move on to the big one the big bone daddy of evidence which is going to be hearsay hearsay where to begin hearsay is one of those rules it's not even a rule the analysis of hearsay encompasses so many different rules and directions to go I couldn't possibly talked about hearsay you know and all of the black-letter law in this video that would require you know a 2-hour video discussing every nuance of hearsay so what I'm gonna try to do is just give you the overview how to think about what is here saying what is in here saying so let's just go with the the policy behind here kind of like what we talked about for character evidence why do we have here say so if you ever played telephone it's a child right we played this in first or second grade so it's a game that you play when you're you know children in a classroom you may have done this what happens is the teacher has a statement and they say that so all these kids in the class sit in a big circle right around from each other and the teacher starts with some statement right and she whispers that statement to the first kid and that kid whispers it to the kid sitting next to them to the kid next to them and it goes all the way around the circle and it always gets back to the teacher and of course it's completely changed from whatever the statement was originally when it gets back to the teacher it's totally different and I think you know that's just because that's probably just human nature right it's hard to repeat things exactly to put words in someone else's mouth and you can see that with first graders and adults and every walk of life so hearsay is here to prevent that from happening to prevent that telephone situation from happening the whole point of hearsay is if you have somebody who's made a statement out of court we don't want somebody else to testify to what that person said for them if you have a witness that said something and you want to bring that in to trial you need to call the person who said it because we don't want somebody else putting words in their mouth warm they might get it wrong if somebody said something out of court call the person who said it and bring them to court that is the whole goal of hearsay so what is hearsay the traditional definition of hearsay is going to be hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted that's what you're gonna want to write on your bar exam that is what hearsay is and I like to think about hearsay in terms of three elements when you're determining what is here Seth it's an out-of-court statement that is okay so three outside just jumbled two together it's an out-of-court that's your first out a statement is number two and being offered for the truth of the matter asserted is number three so let's talk about those one by one what does it mean to be out of court because sounds easy but I've actually seen this messed up before out-of-court means anything that is out of the four corners of the courtroom that you're currently in right now anything that is said outside of that box that is your current courtroom is out of court so if it said in the hall outside the courtroom 10 minutes before proceedings began that's out of court if it's said in a different courtroom six months ago that's out of court anything out of the four corner box of your courtroom is out of court what is a statement right because it's an out of court statement being offered for the truth of the matter asserted a statement is a person's oral assertions written assertions and nonverbal assertions key word here being a person's has to be a human being making an assertion that assertion can be oral written or nonverbal so what if a dog is barking is that an out-of-court statement it's out of court most likely is it a statement no remember has to be a human being to be an assertion for hearsay purposes a dog barking is not an out-of-court statement that doesn't fall under hearsay what about a copier or a factor that's making machine somebody says they heard a fax going off that is not gonna fall under hearsay that's not a statement has to be a person making the statement which is an assertion what about somebody nodding their head right is that a statement yes as long as it's a nonverbal assertion a thumbs up a head nod all of that as long as a person is doing it can be a statement for hearsay purposes remember anything written oral or nonverbal so a letter an email if it has assertions in its statements in it that is going to fall under out-of-court statement the main thing there to remember is a the oral statements like me talking right now this is all out of court I'm making all kinds of assertions here this would all fall under that umbrella of an out-of-court statement if I was writing anything letters emails that's gonna fall under it and obviously thumbs up head nods that's all that's all good - as long as it's an assertion rembu has to be a human being not an object a machine an animal knocking account as an out-of-court statement so let's move on to the big part of USA which is that third helmet so it's an out-of-court statement that's offered for the truth of the matter asserted what does that mean truth of the matter sir it's being offered for the truth of the matter asserted so fortunately there's normally four things there's four examples there's four out-of-court statements that are commonly offered that are not for the truth of the matter asserted these are verbal acts of independent legal significance statements offered to show the effect on the listener statements offer to show the mental state of the declarant and statements offered for impeachment purposes all of these statements they could be out-of-court statements are being offered but they're not being offered to show the truth of the matter asserted so they're not hearsay so if looking at some examples for each of these so start with verbal acts of independent legal significance imagine out of court you have somebody imagine this for a defamation case right somebody is out of core making defamatory statements about you they are you know shooting their mouth off out of court making all kinds of assertions some statements that aren't true about you it hurts your reputation so you sue for defamation when you get to court for your defamation suit you're going to want to bring in those defamatory statements of that person set even though technically that's an out-of-court statement it's not hearsay they can't object and say that's hearsay that's a statement as in and in legal significance is an actual element of defamation that you have to show that false statements were made so you have to bring in those statements it's an active independent legal significance you can't sue someone for defamation then not bringing the statements issues that they said now we don't care about the truth of those statements and that's the theme here with all this we don't care whether those statements are true or not we're bringing it in because we have to because it has independent legal significance this would be the case for a threat right if you're suing someone for assault they've caused a reasonable apprehension right of fear and you're trying to show that they were banging on your door and threatening you or whatever you don't care if their threats were true or not that doesn't matter we're not introducing that out-of-court statement to show the truth of the matter asserted we're bringing in just because it has independent legal significance this is a threat it made you feel a reasonable apprehension that's why you're bringing in to prove an element of your case not you don't care whether it's true or not that's verbal active in of independent legal significance the next example is to show an effect on the listener so if you and me are standing out on the street and I say hey look out there's a car coming and you jump out of the way to dodge it right and we want to bring that into court to show the effect on the listener we don't care if a car was actually coming or not but we were bringing in me yelling at you that a car was coming to show the reason why you jumped out right we're showing the effect on the listener we don't care whether or not my statement was true whether a car was coming or not that's irrelevant we're bringing it in to show that you jumped out of the way right that was your effect on the listener next you have to show the declarant state of mind so an out-of-court statement offered to show the declarant state of mind or mental state so imagine that there's some guy that's outside and he's telling everybody out you know out-of-court statements that he's the king of right he's just yelling this from the rooftops to everyone that's his thing you know he's the king of England and he really believes it whatever he's telling everybody's the King of England and in somehow this guy ends up being a witness at trial and we asked him you know and the the other side wants to ask him about these statements to show his mental state right this is an out-of-court statement but it's not being offered to show the truth of the matter of certain we don't care whether or not this guy's the King of England we're not introducing this statement that he's made to prove whether or not he's the king of England we don't care about that we're introducing it to show his mental state this guy's clearly unstable this is a crazy person he's running around telling everyone he's the king of England that's why we're bringing it in so he's a crazy person not to show you know to show his mental state I just should I should say not to show the truth of the matter asserted and finally your last big one you have our impeachment purposes this is all about tacking the witness's credibility so if you introduce an out-of-court statement to attack the witness's credibility you don't necessarily care whether the statement is true or not like this is common with prior inconsistent statements we don't necessarily care if you're introducing it for impeachment purposes not substantive purposes although there is you know certain ways that private consistent statements can come in for substantive purposes but I'm not gonna go into that but if you're bringing it in a prior inconsistent statement that's made out of court to say that this person to attack their credibility you're not bringing it in even though it's an out-of-court statement for the truth right you don't care whether their statement was true or not you only care that it's an inconsistent statement which shows that they may lack credibility you don't care about the truth of the matter asserted so any of those four categories are triggered you don't have hearsay because that third element isn't met it's an out-of-court statement but it's not being offered for the truth of the matter asserted so categorically by definition those statements are not hearsay even though they're out-of-court statements I just want to look out for that the reason that I'm so specific there's often times I'll see something that is categorically not hearsay and people even recognize that and come to the conclusion that something's not hearsay because it's not awful for the truth of the matter asserted but then they'll start talking about exceptions to hearsay where it could possibly come in and this is very wrong if something is not hearsay you don't need to discuss any exceptions to the hearsay rule it's not hearsay so it doesn't you don't have to discuss exceptions to the hearsay rule for something that's not hearsay it's admissible right unless something else is triggered those things are going to be admissible they're not hearsay and those are your main four categories otherwise if you find something that it is hearsay it meets all three of those criterias out of court it's a statement and it's offered for the truth of the matter asserted then your starting point general rule is going to be it's inadmissible but obviously we know from our time and evidence in law school that there's a dozen or so exceptions to that rule where even though it is hearsay the courts still going to allow to come in I don't want to go through all of those exceptions in this video if you're interested in learning about those I recommend that you you know check out the Federal Rules of Evidence it's gonna lay out those exceptions for you really neatly and do that for free or if you want more involved explanations of those exceptions I always recommend our tack a line link in the description otherwise guys I don't want to go on more than I have to those are your three most tested rules and evidence relevance character evidence and hearsay you want to make sure that you have those down ice cold in your preparation for the multi-state exam it's very likely that you're gonna see at least one of those if evidence is tested if not all of them and with that guys I will leave you to it we should be absolutely best of luck in your bar preparation and I'll see you at our next video

Channel: Studicata

Views: 47,545

Keywords: bar exam, bar prep, multistate essay exam, uniform bar exam, mee, ube, mee predictions, studicata, evidence, relevance, probative value, character evidence, hearsay, bar review, hearsay evidence explained, hearsay rules of evidence, hearsay exceptions, relevance evidence, character evidence federal rules, probative value vs prejudicial effect, probative value of evidence, character evidence and impeachment, character evidence explained, new york bar exam, new jersey bar exam

Id: HFb1GFjfDcY

Length: 36min 41sec (2201 seconds)

Published: Wed Mar 07 2018