The Multistate Bar Exam (MBE) contains a total of 175 scored multiple-choice questions. Of that 175, the bar examiners will present you with 25 evidence questions. Based on a review of the frequency of each type of evidence question, you’ll see the following breakdown within those 25 evidence questions:
- Hearsay and circumstances of its admissibility: 6-7 questions
- Presentation of evidence: 6-7 questions
- Relevancy and reasons for excluding relevant evidence: 8-9 questions
- Privileges and other policy exclusions: 2 questions
- Writings, recordings, and photographs: 2 questions
As you can see, hearsay questions make up a large portion of the Evidence MBE questions you’ll be confronted with on exam day. Learn how to tackle these questions, and you could see a critical boost in your MBE score. Below are tips on how to approach hearsay questions.
1. The Overarching Approach
When approaching MBE questions, especially hearsay questions, a strong tactic is to think through the question as though you would be answering it on an essay. Thinking broadly about the answer will ensure you’ll fully analyze the entire scenario before jumping to a conclusion. Before looking at the answer choices, determine: a) whether you’re dealing with a hearsay question, b) whether the statement (or statements) are in fact hearsay, c) whether any exceptions apply, and d) whether you should consider the Confrontation Clause.
By doing this full analysis upfront, you won’t be tempted by the distractor answers that the bar examiners like to give you. Review the answer choices, and select the choice that provides the closest match to your analysis.
2. Identify whether you’re Dealing with a Hearsay Question
Whenever you see a question asking whether an out-of-court statement can be admitted, you are in the realm of hearsay. In any situation that could potentially involve hearsay, your first task is to determine whether or not the proffered statement is, in fact, hearsay. The bar examiners love to throw red herrings in, so be sure to do a thorough analysis on whether you’re dealing with hearsay.
Hearsay is an out-of-court statement offered for the truth of the matter asserted. Remember though–a statement can be spoken words or a nonverbal assertion. Out-of-court means that the declarant (the one providing the statement) did not make it while testifying at the current trial or hearing. When looking at whether the statement is offered for its “truth,” ask yourself if the statement is being admitted to prove its content.
In your analysis, don’t forget that the rule (FRE 801(d)) specifies two categories of statements as not hearsay if certain conditions are met: a declarant witness’s prior statement (FRE 801(d)(1)) and an opposing party’s statement (FRE 801(d)(2)). If the statement falls into either of these categories, the correct answer will reflect that the statement is not hearsay at all.
3. Determine whether any Exceptions Apply
Now that you’ve determined that you’re dealing with hearsay, check to see what, if any, hearsay exceptions apply. Many evidence questions offer an answer choice that says “inadmissible because it is hearsay.” While this could be correct, never stop there—most hearsay questions are also going to test the hearsay exceptions.
There are many hearsay exceptions. In preparing for the exam, familiarize yourself with (if not hopefully memorize) all of them—including those exceptions that apply whether or not the witness is available. Some of the most common hearsay exceptions include present sense impression, excited utterance, statements made for a medical purpose or diagnosis, and the business records exception. When looking at those exceptions that apply only if the declarant is unavailable, common exceptions to remember include testimony under oath, dying declaration, and statements against interest.
Many MBE questions will test multiple hearsay exceptions within the same question. When that happens, there will often be answer choices that list one exception that applies, but not all of the exceptions that apply in a given situation. Don’t get fooled by these answer choices; look for the best answer choice that encompasses all of the exceptions that apply to a given situation.
4. Don’t forget the Confrontation Clause
Now that you’ve determined you’re working on a hearsay question and some exceptions may or may not apply, don’t forget to take one more step: determining if the Confrontation Clause bars the statement from being admitted. We won’t do a full analysis here but, in a nutshell, the Confrontation Clause requires that a defendant in a criminal case have an opportunity to cross-examine a witness when the witness’s statement is “testimonial”—meaning that the statement’s primary purpose is for use in a criminal prosecution.
The MBE can cause a lot of angst amongst bar exam takers, and hearsay questions make up a solid portion of what you’ll see on exam day. But by practicing, and implementing a strong approach, you’ll be able to improve your score.