3 MBE Evidence Questions to Study

3 MBE Evidence Questions to Study

Evidence was probably my least favorite subject in law school. The blend of rote memorization and the large list of rules (with an even longer list of exceptions) just did not play to my strengths. Still, I weathered the storm, and whether you’re an evidence master or just trying to get by, you’ll need to familiarize yourself with the kinds of Evidence MBE questions you’re likely to see.

Disclaimer – these are not actual Evidence MBE questions. However, I can say with confidence that they are fairly representative of the types of questions you will see, and cover concepts you will need to know. Alright, let’s dive in!

MBE Evidence Question No. 1

Slippin’ Jimmy forged a check and attempted to cash it at E Corp Bank, interacting with Talia the Teller. Slippin’ Jimmy slipped up, was caught, and subsequently put on trial. Talia the Teller testified that Slippin’ Jimmy had presented a check drawn on the account of Bob. Bob owned a popular burger dive called Bob’s Burgers nearby, and frequently came to the bank while Talia the Teller was working, so she was familiar with Bob’s handwriting. When she attempted to inspect the check further, Talia testified that Slippin’ Jimmy grabbed it back and shoved it into his mouth, chewing quickly, and ran out of the bank. The check was never seen again.

Is the testimony of Talia the Teller regarding Slippin’ Jimmy’s forged signature admissible?

A) Yes, because the testimony is based entirely on what was perceived directly by Talia the Teller.

B) Yes, because Talia the Teller had previous experience with, and could recognize, Bob’s handwriting.

C) No, because the jury must be allowed to compare handwriting samples, and because recovery of the check chewed up by Slippin’ Jimmy was not possible.

D) No, because any need for Talia the Teller’s testimony only arises from her allowing Slippin’ Jimmy to reclaim the suspected forgery.

MBE Evidence Question No. 2

Two reality television chefs, Ramsey and Fieri, were campaigning to be voted King of Foods in a well-known award contest. Just one week before the vote was to occur, a news website published a story implying that Fieri’s cooking had been known to cause food poisoning. Fieri lost and Ramsey was named King of Foods. Fieri sued the news website for defamation, and the news website defended on the grounds of truth. At the trial Fieri testified that his cooking had never, in all his professional career, ever caused a single instance of food poisoning. The news website subsequently called a witness to testify that a seafood soup prepared by Fieri seven years ago had given ten people food poisoning.

Fieri objects to this testimony. Will it be excluded?

A) No, because it is relevant to the question of whether or not Fieri’s cooking has caused food poisoning.

B) No, because it is relevant to Fieri’s character, both as a cook and in terms of his propensity towards veracity.

C) Yes, because evidence of Fieri’s character is improper in this instance.

D) Yes, because although relevant and probative, it is an attempt to prove bad acts with outside evidence.

MBE Evidence Question No. 3

In a civil suit involving the products sold by Tyrrell Corp, Ace Wright is the attorney representing Eldon Tyrrell. On examination, Ace Wright asked Tyrrell to name and describe the three models of Replicants his company makes. He could name two, but could not recall the third model. Ace Wright wants to show Tyrell notes he prepared during an interview with Tyrell before trial that have the names of the three Replicant models. Is this okay?

A) No, the notes are inadmissible hearsay.

B) No, the notes a veiled attempt at witness leading.

C) Yes, this is a permitted attempt to refresh Tyrell’s recollection.

D) Yes, these notes are a recorded recollection.

Bar question answer kitten

Answer Question No. 1 : B

Under the Federal Rules of Evidence, authentication of genuine writing can be satisfied by non-expert opinion (FRE 901(b)(2)). Here Talia the Teller was personally familiar with Bob’s handwriting, so her testimony regarding the forged signature will be admissible.

A) is incorrect in this case, though it is not necessarily wrong. Here we have a case of “which is the better answer,” an analysis you’ll often be forced to do on the MBE. The Federal Rules of Evidence provide leeway for non-expert opinion based on personal perceptions, but the applicability of a rule specific to instances of handwriting will prevail as the better answer. When two choices seem good, often the more specific answer will prevail.

C) is incorrect because, although authentication by way of handwriting comparison is certainly a valid option when available, it is not the only method allowed.

D) is incorrect because Talia the Teller did not act in bad faith by not keeping Slippin’ Jimmy from grabbing the check back and shoving it into his mouth. Original evidence lost as a result of bad faith can prevent other evidence from filling the void, but this is not the case here.

Answer Question No 2: A

Here we have a case of defamation, which is one of few instances in which character evidence in the form of opinion, reputation, and specific acts are admissible. The news website is attempting to defend against the defamation claim on the basis of truth. Here Fieri’s cooking, and whether or not it has been known to cause food poisoning, is directly at issue in the defamation claim. Because of what is at issue in this defamation claim, and the defense being asserted, acts relevant specifically to Fieri’s cooking having caused food poisoning will be admissible.

B) is incorrect because Fieri’s character for veracity, or truthfulness, is not at issue in this particular instance and would not be as relevant as evidence directly on the subject of Fieri’s cooking causing food poisoning.

C) is incorrect because, although it is the general rule that character evidence should not be admitted in civil matters, there are exceptions. One of these exceptions is a defamation action.

D) is incorrect because there are instances in which conduct can be admitted, one of which is cases involving defamation.

Answer Question No. 3: C

The Federal Rules of Evidence allow for writings to be used to refresh a witness’s memory, and the use of Wright’s interview notes to refresh Tyrell’s recollection would be allowed.

A) is incorrect because the writing is not being offered as evidence itself, and thus does not undergo a hearsay analysis.

B) is incorrect because there does not appear to be any attempt to lead, veiled or otherwise.

D) is incorrect because we haven’t yet reached the stage of trying to have the notes entered into evidence. Attempting to refresh a witness’s memory with the document is a prerequisite to using the notes as a recorded recollection, but first Wright’s notes must fail to help Tyrell recall the name and description of the final model of Replicant.

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