Evidence: Relevance, Hearsay, and Witnesses

Master Evidence law with free flashcards and strategic practice for the MBE. This lesson covers relevance and FRE 403 balancing, hearsay definitions and exceptions (including present sense impressions, excited utterances, and business records), witness competency and impeachment techniques, authentication requirements, and privilege rules—all essential for conquering the Evidence questions on the bar exam.

Welcome to Evidence Law ⚖️

Evidence is tested on approximately 25-28 questions on the MBE, making it a crucial subject for bar exam success. Unlike substantive law subjects, Evidence focuses on what information can be presented to the jury and how it must be authenticated. The Federal Rules of Evidence (FRE) govern these determinations, and you'll need to master both the black-letter rules and their practical applications.

This lesson targets the highest-yield topics: the relevance framework (including the critical FRE 403 balancing test), the hearsay rule with its numerous exceptions, witness testimony rules, and authentication requirements. We'll focus on fact patterns that frequently appear on the MBE and the trap answers examiners use to test your understanding.

💡 Tip: Evidence questions often combine multiple rules. A single question might test hearsay, authentication, AND relevance. Train yourself to spot all applicable rules.

Core Concepts

1. Relevance and FRE 403 Balancing ⚖️

Relevance is the gateway to admissibility. Evidence must be relevant to be admissible, but relevant evidence can still be excluded under FRE 403.

FRE 403 Exclusion: Even relevant evidence may be excluded if its probative value is substantially outweighed by:

• 🔴 Danger of unfair prejudice
• ⏰ Undue delay or waste of time
• 🔀 Confusion of the issues
• 🎭 Misleading the jury

⚠️ Common Mistake: The standard is "substantially outweighed"—not just "outweighed." The balance must tip heavily against admission. Judges have broad discretion here.

Character Evidence: Generally inadmissible to prove conduct in conformity with character (propensity reasoning). But there are important exceptions:

Habit Evidence: Unlike character evidence, habit is admissible to prove conduct on a particular occasion. Habit = specific, repeated, semi-automatic response to a particular situation.

┌────────────────────────────────────────────┐
│     CHARACTER vs. HABIT                    │
├────────────────────────────────────────────┤
│                                            │
│  CHARACTER (generally inadmissible)        │
│  • "He is a careful person"                │
│  • General trait                           │
│  • Volitional                              │
│                                            │
│  HABIT (admissible)                        │
│  • "Every morning at 6am he jogs           │
│    exactly 3 miles on Oak Street"          │
│  • Specific, repeated, reflexive           │
│  • Semi-automatic response                 │
│                                            │
└────────────────────────────────────────────┘

2. Witnesses: Competency, Impeachment, and Rehabilitation 👥

Competency: Under FRE 601, every person is presumed competent to be a witness unless:

• They cannot understand the duty to tell the truth, OR
• They cannot perceive or communicate

Children and people with mental impairments are generally competent—the jury assesses credibility.

Impeachment (attacking witness credibility) can be done by ANY party, including the party who called the witness:

💡 Mnemonic for Impeachment: CRISP BBC

• Conviction (prior criminal)
• Reputation for untruthfulness
• Inconsistent statements
• Sensory deficiency
• Prior acts of dishonesty
• Bias
• Bad character for truthfulness
• Contradiction

Rehabilitation: After impeachment, you can rehabilitate a witness through:

• Prior consistent statement (only if inconsistent statement was claimed OR express/implied charge of recent fabrication/improper motive)
• Good character for truthfulness (reputation or opinion)

⚠️ Common Mistake: You cannot introduce a prior consistent statement just because the witness was impeached with a prior inconsistent statement. There must be a charge of recent fabrication or improper motive.

Expert Testimony: Under FRE 702 (and Daubert), expert testimony is admissible if:

1. Expert has specialized knowledge/skill/experience/training/education
2. Testimony will help the jury (beyond common knowledge)
3. Based on sufficient facts or data
4. Testimony is the product of reliable principles and methods
5. Expert has reliably applied the principles to the case

Experts can base opinions on:

• Personal knowledge
• Facts made known at trial
• Inadmissible evidence IF reasonably relied upon by experts in the field

3. Hearsay: Definition, Exemptions, and Exceptions 💬

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless an exemption or exception applies.

Step 1: Is there a STATEMENT?
        (Oral, written, or conduct intended as assertion)
        │
        ↓
Step 2: Was it made OUT OF COURT?
        │
        ↓
Step 3: Is it offered for TRUTH OF MATTER ASSERTED?
        │
        ↓
   If YES to all three → HEARSAY
        │
        ↓
   Check for EXEMPTION or EXCEPTION

Not Hearsay (Non-Hearsay Purposes):

• Offered to show effect on listener (notice, fear, motive)
• Offered to show speaker's state of mind (insanity, knowledge)
• Verbal acts (legally operative words: "I accept," "I give")
• Impeachment by prior inconsistent statement

Hearsay Exemptions (FRE 801(d)—defined as "not hearsay"):

Major Hearsay Exceptions:

Present Sense Impression (FRE 803(1)):

• Statement describing/explaining event
• Made while or immediately after perceiving it
• No requirement of excitement/stress

Excited Utterance (FRE 803(2)):

• Statement relating to startling event
• Made while under stress of excitement from event
• Longer time gap allowed than present sense impression

┌──────────────────────────────────────────┐
│   PRESENT SENSE vs. EXCITED UTTERANCE    │
├──────────────────────────────────────────┤
│                                          │
│  PRESENT SENSE IMPRESSION                │
│  Event → 🗣️ "Look, the car is red"     │
│  (simultaneous/immediate)                │
│  ⏱️ Very short time window               │
│  😐 No stress required                   │
│                                          │
│  EXCITED UTTERANCE                       │
│  💥 Startling event → 😱 Stress →       │
│  🗣️ "Oh my God, that red car hit me!"  │
│  ⏱️ Longer time window OK                │
│  😱 Must be under stress                 │
│                                          │
└──────────────────────────────────────────┘

Then-Existing State of Mind (FRE 803(3)):

• Statement of declarant's current mental/emotional/physical condition
• Includes intent to do something in future ("I'm going to meet Bob tomorrow")
• ⚠️ Does NOT include memory/belief about past facts

Statement for Medical Diagnosis/Treatment (FRE 803(4)):

• Statement made for medical diagnosis or treatment
• Describes symptoms, medical history, or cause of condition (if reasonably pertinent to treatment)
• Can include statements by patient or family members
• 💡 Key: Child abuse victims' statements about identity of abuser admissible if doctor needs to know for treatment

Business Records (FRE 803(6)):

• Record of act/event/condition
• Made at or near time by person with knowledge
• Kept in regular course of business
• Regular practice to make such records
• Requires custodian or other qualified witness to testify
• ⚠️ Exclude if source/circumstances indicate lack of trustworthiness

Public Records (FRE 803(8)):

• Records of public office setting out:
  • Office's activities, OR
  • Matters observed while under legal duty to report (except police observations in criminal cases), OR
  • Factual findings from investigation (except in criminal cases against defendant)

Former Testimony (FRE 804(b)(1)) [requires declarant unavailable]:

• Testimony given at prior proceeding or deposition
• Same party (or predecessor in interest in civil cases) had opportunity and similar motive to develop testimony
• Most common in civil cases where same parties appear at trial and deposition

Statement Against Interest (FRE 804(b)(3)) [requires declarant unavailable]:

• Statement that reasonable person would not have made unless true
• Must be against declarant's pecuniary, proprietary, or penal interest at time made
• If offered in criminal case to exculpate defendant, requires corroboration

Dying Declaration (FRE 804(b)(2)) [requires declarant unavailable]:

• Statement made by declarant who believes death is imminent
• Concerning cause or circumstances of impending death
• Admissible in homicide prosecutions and civil cases

4. Privileges 🔒

Privileges allow witnesses to refuse to disclose confidential communications. Key privileges:

Attorney-Client Privilege:

• Confidential communication
• Between attorney and client
• Made for purpose of obtaining or providing legal advice
• Privilege belongs to client (only client can waive)
• Survives client's death
• Exceptions: Crime-fraud exception, disputes between attorney and client

Spousal Privileges (two distinct privileges):

💡 Key Distinction: Spousal immunity is broad (can refuse ALL testimony) but only applies during marriage. Marital communications privilege is narrow (only confidential communications) but survives divorce.

Physician-Patient Privilege: Recognized by many states (not FRE) for confidential communications made for medical treatment. Typically does NOT apply when:

• Patient's physical condition is at issue
• Civil commitment proceedings
• Disputes between physician and patient

5. Authentication and Best Evidence Rule 📄

Authentication (FRE 901): Proponent must produce evidence sufficient to support a finding that the item is what the proponent claims.

Common Authentication Methods:

• Testimony of witness with personal knowledge
• Handwriting: Lay witness familiar with handwriting, expert comparison, or jury comparison
• Voice identification: Witness familiar with voice
• Telephone conversations: Caller identifies self + circumstances suggest identity
• Ancient documents: Document is 20+ years old, in proper custody, facially authentic
• Self-authenticating documents: Public documents with seal, certified copies, newspapers, trade inscriptions, commercial paper
• Reply doctrine: Document sent in response to prior communication (shows authenticity)

Best Evidence Rule (FRE 1002): To prove content of a writing, recording, or photograph, the original is required (or a duplicate).

⚠️ Key Limitation: Only applies when trying to prove contents. Does not apply when:

• Witness has personal knowledge independent of document
• Document is collateral to issues
• Voluminous documents (summary allowed)

Acceptable Substitutes for Original:

• Duplicate (same as original unless genuine question of authenticity)
• Original lost or destroyed (not by proponent in bad faith)
• Original not obtainable by judicial process
• Original in possession of opponent who was given notice

Examples with Detailed Explanations

Example 1: Hearsay and Excited Utterance 🚗💥

Fact Pattern: Plaintiff sues defendant for injuries from car accident. Plaintiff's witness testifies: "Two minutes after the crash, a bystander ran up to me shouting, 'That blue sedan ran the red light!'" Defendant objects as hearsay.

Analysis:

1. Is it hearsay? Yes—the bystander's statement is out-of-court and offered to prove defendant ran the red light.
2. Exception? Excited utterance (FRE 803(2))
   • ✅ Startling event: car accident
   • ✅ Statement relates to the event: describes what caused it
   • ✅ Made while under stress: "shouting" + only 2 minutes after suggests still excited
3. Result: Likely admissible. The short time frame and manner of speaking ("shouting") indicate the declarant was still under the stress of excitement.

💡 Teaching Point: The key to excited utterance is that the declarant must still be "under the stress of excitement." Courts look at: time elapsed, nature of event, and declarant's condition/behavior.

Example 2: Prior Inconsistent Statement and Impeachment 🎤

Fact Pattern: At trial, witness testifies defendant was not at the scene. On cross-examination, defense attorney asks: "Didn't you tell police the day after the incident that defendant was at the scene?" Witness admits this. Prosecutor seeks to introduce the police report containing this statement.

Analysis:

1. Impeachment: The inconsistent statement can be used to impeach (attack credibility).
2. Substantive evidence? Under FRE 801(d)(1)(A), a prior inconsistent statement is not hearsay (exemption) ONLY if:
   • ✅ Declarant testifies at trial and is subject to cross
   • ❌ Prior statement was given under oath at a proceeding
3. Here: Police report statement likely NOT under oath at proceeding → remains hearsay
4. Result: Can be used for impeachment (credibility), but police report itself is NOT admissible as substantive evidence of defendant being at scene.

💡 Teaching Point: Prior inconsistent statements have dual use—always admissible for impeachment, but only admissible as substantive evidence if the statement was made under oath at a prior proceeding.

Example 3: Business Records and Trustworthiness 📊

Fact Pattern: Plaintiff seeks to admit hospital record stating "Patient reports she slipped on defendant's wet floor." Hospital records custodian testifies the record was made in regular course of business.

Analysis:

1. Business record elements (FRE 803(6)):
   • ✅ Record of event (patient's statement)
   • ✅ Made at or near time
   • ✅ By person with knowledge (nurse recorded what patient said)
   • ✅ Regular course of business
   • ✅ Regular practice to make such records
   • ✅ Custodian testified
2. Problem: The record contains hearsay within hearsay—patient's out-of-court statement about what caused fall.
3. Inner hearsay: Patient's statement about cause needs separate exception → FRE 803(4) (statement for medical diagnosis/treatment)
   • ✅ Made for medical treatment
   • ✅ Cause of injury reasonably pertinent to treatment (doctor needs to know cause to treat properly)
4. Result: Admissible—both layers of hearsay have exceptions.

⚠️ Common Mistake: Many students forget that business records often contain hearsay within hearsay. Each layer needs its own exception!

Example 4: Character Evidence and MIMIC 🎭

Fact Pattern: Defendant charged with bank robbery using distinctive method (cutting through roof). Prosecutor seeks to introduce evidence that defendant committed three prior robberies using the same roof-cutting method.

Analysis:

1. Character evidence rule: Generally cannot use prior crimes to show defendant has criminal propensity.
2. MIMIC exception: Prior crimes admissible to show:
   • Motive
   • Intent
   • Mistake (absence of)
   • Identity
   • Common plan/scheme
3. Here: The distinctive method ("signature crime") suggests identity—the same person committed all robberies.
4. FRE 403 balancing: Court must still determine whether probative value substantially outweighed by unfair prejudice.
5. Result: Likely admissible to prove identity through modus operandi.

💡 Teaching Point: MIMIC is not a free pass. The prior act must genuinely prove one of the MIMIC purposes, and the court retains FRE 403 discretion to exclude.

Common Mistakes to Avoid ⚠️

1. Confusing hearsay exemptions with exceptions: Exemptions (FRE 801(d)) are defined as "not hearsay." Exceptions (FRE 803, 804) admit hearsay despite it being hearsay. The distinction matters for some appeals issues.

2. Forgetting the "truth of the matter asserted" requirement: Statement offered for non-hearsay purpose (effect on listener, impeachment, verbal act) is NOT hearsay.

3. Mixing up present sense impression and excited utterance: Present sense requires simultaneous/immediate statement but no stress. Excited utterance allows longer time but requires stress from startling event.

4. Assuming all prior inconsistent statements are substantive evidence: Only if made under oath at prior proceeding. Otherwise, just impeachment.

5. Forgetting hearsay within hearsay: Business records often contain statements by customers, patients, etc. Each layer needs an exception.

6. Overstating Best Evidence Rule: Only applies when proving contents of writing. Witness with personal knowledge can testify about facts without producing document.

7. Confusing the two spousal privileges: Spousal immunity (refuse all testimony, during marriage only, witness holds) vs. marital communications (only confidential communications, survives divorce, both spouses hold).

8. Character evidence mistakes:

   • Forgetting defendant must "open the door" first
   • Not knowing reputation/opinion allowed on direct, but NOT specific acts
   • Missing that prosecution can rebut defendant's character evidence

Key Takeaways 🎯

📚 Further Study

• Federal Rules of Evidence: https://www.law.cornell.edu/rules/fre (Official text of all FRE rules with annotations)
• NCBE Subject Matter Outline for Evidence: https://www.ncbex.org/exams/mbe/preparing/ (Official MBE testing outline)
• Evidence: Examples & Explanations by Christopher Mueller: Leading study aid with detailed fact patterns and explanations

Remember: Evidence questions require layered analysis. Always identify all applicable rules (relevance, hearsay, authentication) before concluding admissibility. Practice spotting trap answers that misstate exception requirements or confuse similar concepts. The MBE rewards careful, systematic analysis! ⚖️