Bar Exam — Evidence (MBE subject) flashcards
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Federal Rules of Evidence for the MBE: witnesses and preliminary questions, relevance and 403, character and habit, policy exclusions, impeachment, opinion, authentication, best evidence and summaries, hearsay and its exceptions, Crawford, and privileges.
Learn deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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Under the FRE, what is the starting presumption about whether a witness is competent to testify, and when does state law control instead?Every person is competent to be a witness unless a rule says otherwise; in a civil case, state competency law governs a claim or defense for which state law supplies the rule of decision. Youth, mental illness or a criminal record go to credibility, not competence.Presentation › Witnesses
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A lay witness testifies that the defendant ran the red light, but on cross admits she learned it from a neighbor. What objection should succeed?Lack of personal knowledge — a lay witness may testify only about matters she perceived, and the proponent must offer evidence sufficient to support a finding that she did. Repeating the neighbor's account would also raise a hearsay problem.Presentation › Witnesses
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What is the FRE test for whether evidence is relevant?Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence — a very low threshold. Relevant evidence is admissible unless the Constitution, a statute or a rule excludes it; irrelevant evidence is never admissible.Relevance › Probative Value and Rule 403
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On what grounds may a court exclude relevant evidence under FRE 403, and which way does the balance tilt?When its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. The 'substantially outweighed' standard favors admission.Relevance › Probative Value and Rule 403
Watch out: unfair surprise is not a listed ground. -
What does the attorney–client privilege protect, and who holds it?Confidential communications between a client (or the client's representative) and a lawyer made for the purpose of obtaining or providing legal advice. The client holds and may waive it; it survives the client's death; and it shields the communications, not the underlying facts.Privileges
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A client asks her lawyer how to burn down her warehouse for the insurance money without getting caught. Is the conversation privileged?No — under the crime–fraud exception, the privilege does not protect communications in which the client seeks the lawyer's help to commit or plan a future crime or fraud. A client's disclosure of a completed past crime, made to obtain advice, remains privileged.Privileges
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After a customer falls, the store fixes the broken step. May the customer use the repair to prove the store was negligent?No — subsequent remedial measures are inadmissible to prove negligence, culpable conduct, a product or design defect, or the need for a warning.Policy Exclusions
Watch out: they may be admitted for another purpose, such as impeachment or, if disputed, ownership, control or the feasibility of precautionary measures. -
During talks over a disputed crash claim, the defendant says, 'My driver was speeding — would ten thousand dollars settle this?' May the plaintiff offer the statement at trial?No — offers to compromise a disputed claim and statements made in compromise negotiations are inadmissible to prove or disprove the claim's validity or amount, or to impeach by a prior inconsistent statement or a contradiction (FRE 408).Policy Exclusions
Watch out: statements made in negotiations with a public office exercising regulatory, investigative or enforcement authority may be used in a later criminal case. -
When does the best evidence (original document) rule apply?When a party seeks to prove the content of a writing, recording or photograph — because the content itself is at issue (a contract, a libelous letter) or because the witness is testifying from the document rather than personal knowledge. It does not apply when a witness describes an event from her own knowledge that merely happens to have been recorded.Writings › Best Evidence Rule
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How do the FRE define hearsay, and what counts as a 'statement'?Hearsay is a statement the declarant did not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted. A 'statement' is an oral or written assertion, or nonverbal conduct the person intended as an assertion.Hearsay › Definition and Non-Hearsay
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About these cards
Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Checked against the Federal Rules of Evidence and Advisory Committee Notes (U.S. government works, public domain) and the NCBE MBE Subject Matter Outline (edition dated 11/16/20; topic order only; no text copied).
- U.S. Supreme Court opinions cited on cards (Crawford, Davis, Melendez-Diaz, Bullcoming, Giles, Trammel, Upjohn, Old Chief, Huddleston, Bourjaily, Tome, Owens, Daubert, Kumho Tire, Doyle) — public domain; rules paraphrased.
- Checked against the FRE as amended through December 1, 2024 (Rules 107, 613(b) and 1006) and December 1, 2023 (Rules 106, 615 and 702), the amendment to Rule 801(d)(1)(A) adopted to take effect December 1, 2026, and Smith v. Arizona (2024) and Jaffee v. Redmond (public domain); rules paraphrased.
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