Lecture 4 Evidence Foundations and MPT Introduction Welcome to
Week 2. Of our bar.
Prep Master Class In Lecture 4, we turn our focus to the law of
Evidence and begin our formal introduction to the Multi State
Performance Test MPT. Mastery of evidence doctrine is
crucial not only for success on the Multi State Bar examination
MBE, but also for effective analysis on the Multi State
essay Examination Mee. Meanwhile, the MPT assesses
practical lawyering skills by requiring the application of
legal reasoning to a closed universe problem.
Together, these two disciplines will deepen both your doctrinal
fluency and your practical proficiency.
Let us begin with the foundational principles of
evidence. Evidence Foundations.
Evidence governs what information may be presented to
a fact Finder at trial. It is rooted in centuries old
common law traditions and the codified Federal Rules of
Evidence Free, which were promulgated to provide
consistency and fairness in the judicial process.
The rules aim to enhance the accuracy of fact finding,
safeguard against unfair prejudice, and promote judicial
efficiency. In law school, students often
approach the subject as a memorization challenge, but for
bar exam purposes, success requires more than simple rote
recall. You must not only memorize the
rule statements, but also internalize their policy
rationale and understand how each rule operates within the
broader evidentiary framework. Most questions on the MBE test a
nuanced application of rules rather than simple definitions.
You'll be asked to evaluate whether a hearsay exception
applies, whether a witness may be impeached using a prior BAT
act, or whether the relevance of certain evidence is outweighed
by its prejudicial impact under Rule 4.
O3. These scenarios require both
doctrinal fluency and critical thinking.
A strategic approach to evidence will pay dividends in multiple
areas of the bar exam. Relevance Relevance is the
foundational requirement for the admissibility of any piece of
evidence under Rule 4. O1 Evidence is relevant if it
has any tendency to make a fact more or less probable than it
would without the evidence and that fact is of consequence in
determining the action. This standard is extremely
liberal. Evidence need not prove a fact
conclusively, but merely have any probative value.
However, relevance alone does not guarantee admissibility.
Rule 403 gives judges discretionary power to exclude
relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, misleading the jury, undue delay, wasting time, or
presenting cumulative evidence. This balancing test is vital in
criminal trials where the prosecution may wish to
introduce prior misconduct, emotionally charged imagery, or
inflammatory language. The court must carefully weigh
whether the evidence will help the jury reach a more accurate
verdict or distract and inflamed their passions.
Character evidence seeks to establish that a person acted in
conformity with a particular character trait on a specific
occasion. In most situations, the law
disfavors this kind of evidence due to its prejudicial nature.
Rule four O 4 prohibits using character evidence to prove
conduct on a specific occasion, but it provides several
exceptions that are essential to understand.
In civil cases, character evidence is generally
inadmissible unless character is an essential element of a claim
or defense. These cases are rare but may
include defamation, negligent hiring or entrustment, and child
custody. In criminal cases, the accused
may open the door by introducing evidence of a pertinent trait,
example peacefulness when charged with assault.
This allows the prosecution to rebut with contrary character
evidence which can include opinion, reputation, and
specific instances of conduct during cross examination.
Rule 4 O 4B permits evidence of prior bad acts not to prove
propensity but for other purposes such as motive,
opportunity, intent, preparation plan, knowledge, identity, or
absence of mistake or accident. This is often tested on the bar
exam because students must recognize when the evidence is
being used for a legitimate non character purpose.
The court may admit such evidence only with advance
notice and a limiting instruction to the jury.
Habit and routine practice Habit evidence is treated more
favorably than character evidence.
Rule 406 allows the introduction of evidence showing a person's
routine response to a specific set of circumstances to prove
that they acted in accordance with the habit on a particular
occasion. The key is specificity and
regularity. For instance, evidence that a
driver always signals before changing lanes may be
admissible, whereas a general reputation for carefulness would
not be. The rule also applies to
organizations. A company may offer its standard
procedures as evidence that it followed its usual protocol.
This is particularly relevant in business operations, medical
facilities, or law enforcement agencies.
Hearsay. And it's exceptions.
Hearsay is one of the most nuanced and frequently tested
doctrines in evidence. Defined in Rule 8, O1, Hearsay
is an out of court statement offered for the truth of the
matter asserted. The rule covers verbal, written,
and nonverbal assertions. The prohibition against hearsay
aims to exclude statements that cannot be tested through cross
examination. However, not all out of court
statements are hearsay. Rule 8 O 1D lists exclusions
that are considered non hearsay. These include prior inconsistent
statements made underoath and subject to cross examination,
prior consistent statements offered to rebut charges of
recent fabrication, prior identifications made after
perceiving a person admissions by a party opponent, including
vicarious admissions, adoptive admissions, and statements made
by authorized agents. In addition to these exclusions,
the free provides over 20 exceptions in rules eight O 3
and eight O 4, which allow certain hearsay statements to be
admitted even without the declarants availability.
These include present sense impressions made while
perceiving an event, excited utterances made under the stress
of a startling event, statements for medical diagnosis or
treatment, recorded recollections and business
records which require proper foundation, public records
describing official duties or observations, dying declarations
which apply in homicide prosecutions and civil cases,
and statements against interest which must be against the
declarants own pecuniary or penal interest.
Special constitutional considerations arise under the
Confrontation Clause in criminal prosecutions.
In Crawford versus Washington, the Supreme Court held that
testimonial statements by an unavailable witness are
inadmissible unless the defendant had a prior
opportunity to cross examine them.
Testimonial statements include formalized ex parte statements
and those made during police interrogations when the primary
purpose is gathering evidence for prosecution.
Impeachment. Impeachment allows parties to
attack a witness's credibility. Under Rule Six O 7, any party
may impeach, including the one that called the witness.
Impeachment techniques include demonstrating bias, interest or
corruption, prior inconsistent statements whether sworn or
unsworn, attacks on character for truthfulness under Rule Six
O 8 using opinion or reputation testimony, prior convictions
under Rule 609 if they are crimes of dishonesty or felonies
within 10 years, sensory or mental defects affecting the
witnesses perception or memory. Extrinsic evidence is admissible
for impeachment on non collateral matters.
However, when impeachment concerns collateral issues,
extrinsic evidence is excluded and the cross examiner must
accept the witnesses answer. If a witness is impeached, they
may be rehabilitated by showing their good character for
truthfulness or through prior consistent statements introduced
under Rule 8. O 1D1B.
Authentication and the best evidence Rule.
Authentication ensures that evidence is what the proponent
claims it to be. Rule nine O 1 requires only a
prima facie showing that a document, recording, or item is
authentic. Methods include testimony from a
knowledgeable witness, distinctive characteristics, or
comparison with authenticated samples.
Certain documents are self authenticated under Rule 9 O2,
such as certified public records, newspapers, commercial
labels, and official publications.
These do not require extrinsic evidence of authenticity under
the best evidence rule, Rule 1002.
When the content of a writing is an issue, the original writing
must be produced unless an exception applies.
A duplicate is admissible under Rule 1003 unless there is a
genuine dispute about the originals authenticity, or
circumstances make its use unfair.
This rule is especially important in contract disputes,
wills, and evidentiary hearings involving surveillance footage
or digital records. Privileges.
Privileges protect confidential communications within specific
relationships. Although the FREE does not
codify most privileges, federal common law recognizes several.
State law governs privileges in diversity cases under Rule Five
O 1. The most commonly tested
privileges include attorney-client privilege, which
protects confidential communications between client
and lawyer made for legal advice.
This privilege survives the termination of the relationship
and even the client's death. Spousal privileges consist of
spousal immunity, preventing a spouse from testifying against
the other in criminal trials and confidential marital
communications, which protect private discussions during
marriage. Doctor patient privilege
recognized in many jurisdictions but not in federal criminal
cases. Communications must be for the
purpose of diagnosis or treatment.
Psychotherapist Patient privilege Widely accepted and
applicable to licensed mental health professionals.
Clergy Penitent privilege protects confessions or
disclosures made to a member of the clergy in their professional
capacity. Each privilege may be waived by
the holder or lost through disclosure to third parties.
Inadvertent disclosures, such as during discovery, may trigger
Rule 5O2 protections if reasonable steps were taken to
prevent it and correct the mistake.
These evidentiary doctrines form the spine of trial practice and
appear in both multiple choice and essay components of the bar
exam. Mastery of this material will
improve not just your bar exam score, but your practical
ability to litigate effectively. Let us now shift to the MPT
portion of today's lecture. MPT Introduction The multi state
performance test MPT is an essential part of bar readiness,
simulating a real world legal task where you must analyze a
closed universe problem. You have 90 minutes to complete
a performance based writing assignment using only the
supplied materials. Success on the MPT does not
require outside legal knowledge, only careful reading, reasoning
and clear writing. MPT Structure.
Each MPT consists of three components.
A task memo that outlines the client's goals and the format of
the required product. For example, internal
memorandum, persuasive brief client letter.
A file containing factual records, often including
interview transcripts, emails, contracts, deposition excerpts,
or pleadings. A library comprising applicable
legal rules, including statutes, regulations, and judicial
opinions from a fictional jurisdiction.
Types of Tasks While the most common tasks are objective
memoranda and persuasive briefs, other formats include demand
letters, opinion letters to clients, contract drafting or
revision, fact patterns requiring ethical analysis or
advice. Skills Tested The MPT tests your
ability to extract and organize relevant facts from dense
records. Identify controlling rules and
apply them logically to specific facts.
Write clearly, concisely, and persuasively under strict time
constraints. Demonstrate professional tone
and appropriate legal formatting.
Approach Strategy Start with a task memo.
Identify the precise objective and required tone.
Read the library next to understand legal standards and
definitions. Review the file carefully,
noting all facts that bear on the legal issues.
Create a brief outline organizing the rule fact
application for each issue. Use appropriate headings.
Apply IRAC rigorously, and follow formatting cues from the
task instructions. Efficient time management is
key. Consider allocating 25 to 30
minutes for reading and outlining and 60 to 65 minutes
for writing and editing. Avoid wrote recitation of rules
and instead prioritize precise, issue focused analysis.
With the foundations of evidence and the structure of the MPT now
in place, we are prepared to build on these skills and
subsequent lectures. In our next session, we will
tackle criminal law and criminal procedure, both of which
integrate doctrinal precision and litigation strategy.
In conclusion, today's session we explored the foundational
doctrines of the law of evidence, including relevance,
character, hearsay, impeachment, and privilege.
We then transitioned to the mechanics and strategy behind
the MPT. Mastery of both is essential for
bar exam success. In our next lecture, we will
examine criminal law and criminal procedure, further
reinforcing your doctrinal and practical readiness.