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Chapter 11: How to Conquer Evidence on the California Bar Exam

Evidence on the california bar exam.

Evidence is regularly tested on the essay portion of the California Bar Exam. Like other essay subjects, Evidence is somewhat predictable in terms of how it is tested.

Here, we tell you how to approach Evidence on the California Bar Exam, including some of the issues you should expect to see tested in Evidence essay questions.

1. First, know how Evidence is tested. 

Evidence is regularly tested—about once a year on average. Unfortunately, the California Bar Exam loves to test California law for Evidence questions. This is the only MBE subject where California distinctions are routinely tested. Note that California law is not always tested—about half the time the California Evidence Code (CEC) is tested and about half the time the Federal Rules of Evidence (FRE) are tested.

Normally, a California essay question will specify whether you are to apply the FRE or the CEC. If an essay question does not ask which law to apply on the exam, discuss the FRE.

Evidence is generally tested on its own. However, it is sometimes combined with Professional Responsibility, Remedies, Civil Procedure, and Criminal Law and Procedure.

2. Be aware of the highly tested issues. 

Like every subject, the State Bar of California tests certain issues over and over again on Evidence questions. (We have a nice summary of these in our California Bar Exam One-Sheets, which you can see an overview of at the  link here !)

Some of the most highly tested Evidence topics tested on the essay portion of the California Bar Exam include:

• Relevancy: It is crucial that you start your introduction with an overview of logical versus legal relevance . Remember, if you see a  criminal case  where you are asked to apply  California law,  also mention Proposition 8 .
• Effect on a person who heard or read the statement (nonhearsay)
• Admission by a party opponent (nonhearsay under the FRE and a hearsay exception under the CEC

Statement against interest

Present sense impression.

• Contemporaneous statement (a CEC exception only)
• Excited utterance (called “spontaneous statement” under the CEC)
• Business records
• Authentication and the best evidence rule   (called the “Secondary Evidence Rule” in California)
• Impeachment: Prior inconsistent statements have been the most frequently tested impeachment method but specific instances of misconduct that are probative of truthfulness have also been tested. For example, convictions were tested in July 2010 .
• Witness testimony: A witness must have knowledge of the matter she testifies about. A lay witness’s opinion is admissible if it is rationally based on the witness’s perception ; helpful to determining a fact ; and not based on scientific, technical, or other specialized knowledge .

3. Be aware of the highly tested California distinctions. 

We recommend looking at past essays or purchasing our  California Bar Exam One-Sheets  so you can see some of the highly tested Evidence California distinctions. Many bar review courses spend a lot of time discussing distinctions that are hardly ever tested on the California Bar Exam. There are  so   many California distinctions that it is not reasonable to commit them all to memory just for the bar exam. We recommend that you start by memorizing the California distinctions that are most likely to appear on the exam. Unsurprisingly, California distinctions in hearsay rules are among the most highly tested. Below are some of them:

The statement against interest hearsay exception has a California distinction that is occasionally tested.  Under the FRE , the elements for this exception are as follows:

• The declarant is  unavailable ;
• the statement is  against the declarant’s pecuniary, proprietary, or penal interest;
• it was  against the declarant’s interest when made ; and
• the declarant  knew it was against his interest when the statement was made.

Under the CEC , the statement is also admissible if it is against the declarant’s social interest because it risks making the declarant an object of  hatred , ridicule , or  social disgrace in the community. Thus, the exception is broader under the CEC compared to the FRE.

Under the FRE , the present sense impression exception occurs when the declarant  describes or explains an event  while the event is occurring or  immediately thereafter.

The CEC does not recognize this hearsay exception!

Instead, the California Bar Exam frequently tests the “contemporaneous statement” exception which is only recognized by the CEC (and not the FRE). The elements of this exception are that the declarant makes a statement to explain, qualify, or make understandable his own conduct and the statement was made while the declarant is engaged in that conduct . This exception is much narrower than the FRE present sense impression exception.

Exclusions vs. exceptions

An admission of a party opponent is “ nonhearsay” under the FRE , but is a hearsay exception under the CEC .

Prior inconsistent statement

Under the CEC , any prior inconsistent statement can be offered for its truth—it need not be under oath like the FRE requires .

4. Practice!

The best way to gain proficiency at Evidence essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Evidence is routinely tested on the essay portion of the California Bar Exam (including California distinctions). And not only will it help you master the highly tested issues, it will help boost your MBE score as well!

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Evidence essay questions:

• February 2021 Evidence essay: this essay applies the CEC and covers relevance, lay witness testimony, examination at trial, impeachment, policy exclusions, bias, character evidence, MIMIC, privileges, hearsay, hearsay exclusions, and hearsay exceptions (see essay question #1 on the exam).
• February 2020 Evidence essay: this essay applies the CEC and covers Proposition 8, relevance, hearsay, hearsay exclusions, hearsay exceptions, authentication, privileges, lay witness testimony, and impeachment (see essay question #4 on the exam).
• February 2019 Evidence essay (combined with Civil Procedure): this essay applies the FRE and covers relevance, policy exclusions, hearsay, hearsay exclusions, hearsay exceptions, expert witness testimony, and impeachment (see essay question #4 on the exam).
• February 2017 Evidence essay: this essay applies the FRE and covers relevance, hearsay, hearsay exclusions, hearsay exceptions, authentication, lay witness testimony, impeachment, and policy exclusions (see essay question #3 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 12: Professional Responsibility .

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Keep Pace With Bar Exam Evidence Questions: Start With These Tips for California’s Essays

• Maureen MacManus
• CA Bar Exam , Essays

The starting pistol (or, in the case of the bar exam, your sanctioned timing device) has begun.

You bolt out the gate.

After all…

…you may need to sprint to be neck and neck with the bar exam’s Evidence questions.

Specifically, the California Bar Exam’s Evidence essays.

(If you need to brush up on Evidence MBE questions, read our tips here , and watch our live MBE Workshop recording taught by popular bar prep book authors, Mary Basick + Tina Schindler!

Now, back to the races.)

You might be wondering:

What’s all the fuss about Evidence questions on the CA Bar Exam?

Well, Evidence essays are notorious “racehorses.”

This means bar takers’ time-management skills are put to the test.

As you attempt to IRAC down the stretch, navigating the muddied racetrack of issues, you need to gain the perspective of a bar grader, practice Evidence questions plenty, and harness some tips—all to increase your pace and performance.

Speedy History Lesson

Since the late 1980s, Evidence has been tested on the essay portion of the California Bar Examination over 35 times. Expect to expound on relevance and hearsay (which have appeared on almost every Evidence essay since 1987).

But prepare yourself for issues relating to character, impeachment, and authentication too.

And, as always, remember:

If you want to eviscerate Evidence essays, practice can increase your odds of winning.

Our recommendation?

Fully compose 5 or more Evidence essays under timed, closed-book conditions, and issue-spot several more. Check out our new issue-spotting tool, EssayRx , which holds 30 years of real, past CA Bar Exam essays—with an issue checklist accompanying each one.

Of course, just practicing without guidance can ingrain habits that inhibit success.

So, we invite you to join our California Essays Course, schedule one-on-one tutoring sessions, register for our California Bar Review, or gain our faculty’s feedback via graded assignments. See the range of options in our shop , and take advantage of our free graded assignment offer .

before you race to complete more Evidence practice questions,

start with these 3 tactics.

Hearsay Appears More Than Once? Find Unique Issues

Hearkening back to our recent post on Torts essay questions , this tip is fairly similar.

In the context of an Evidence essay:

It’s a safe bet that the essay will ask about the admissibility of several pieces of evidence— and that more than one of these pieces of evidence will raise a hearsay issue.

When this happens, each piece of evidence will probably raise at least one unique hearsay issue.

Prime examples:

• Donna’s Pizza essay from February 2017
• Affair at the Office essay from February 2016

Let’s talk about each of these briefly.

Donna’s Pizza Essay

In this essay, one piece of evidence required a discussion of hearsay within hearsay, the business records exception, and the medical diagnosis exception. Another piece of evidence requires a discussion of the vicarious admissions exemption.

Affair at the Office Essay

Then, in this example, one piece of evidence required a discussion of acts of independent legal significance, while other pieces of evidence raised the issues of party-opponent admissions, the excited utterance exception, and the dying declaration exception.

The takeaways for your studying and test-taking:

• Identify these unique hearsay issues. This step is crucial because these issues tend to be the “big ticket” items. By that, we mean that you’ll need to include those issues in your essay to receive a passing score.
• You’re down to the wire, and two pieces of evidence both raise the party-opponent exemption. But the latter also raises the present sense impression exception.
• Your best bet is to address the party-opponent exemption for the first piece, and choose to focus on the unique issue (the present sense impression exception) for the second piece.

Don’t Get Bamboozled by the Best Evidence Rule

Anytime a writing (or any other piece of documentary evidence) appears in an Evidence essay, bar takers share a common impulse:

Write about the Best Evidence Rule (provides that to prove the contents of a writing, the original must be produced).

That’s a great instinct!

However, a lot of bar takers then assume that the Best Evidence Rule automatically applies, and this simply is not the case.

The Best Evidence Rule doesn’t apply when a party simply tries to prove an event or fact that’s memorialized in a writing, recording, or other piece of documentary evidence.

In other words, if the party has an alternate, independent basis to prove the contents of the writing (e.g., testimony by one with personal knowledge), then the Best Evidence Rule doesn’t apply.

Commit this rule to memory to improve your strategy for Evidence bar exam questions.

Past Recollection Recorded v. Present Recollection Refreshed

Past recollection recorded and present recollection refreshed share this similarity:

A testifying witness is provided with something after they’re unable to recall an event.

Yet students need to keep their distinctions clear.

Oftentimes, bar takers confuse the past recollection recorded exception to hearsay with simply refreshing the witness’s recollection (which is not an exception to hearsay).

When you encounter Evidence bar questions, here’s the key question to ask:

Did the document presented to the witness jog their memory?

If the document “refreshes” the witness’s memory, such that they’re now able to testify from what they can recall, rather than the document, you’re dealing with a present recollection refreshed situation.

There’s no hearsay problem because it’s the witness’s direct testimony, not the document, that jogged their memory—that’s the evidence.

By contrast, if the witness doesn’t have any independent memory, you’re in the land of past recollection recorded. The writing, not the witness’s testimony, is the evidence.

Provided that the witness testifies that they recognize the document as being made when the facts were still fresh in their mind, that they had firsthand knowledge of the event, and attests to the accuracy of the memorandum, the evidence may be admitted as an exception to the bar on hearsay.

Practice Evidence Bar Exam Questions—and Every Topic Tested in California’s Essays

After collecting the tactics above, you might be champing at the bit to practice.

Luckily, we have a platform that’s right out the gate:

With this resource, you can:

• Easily search by 330+ issues in California Bar essays, zeroing in on the exact issues you need to practice.
• Hone your issue-spotting with BarMD issue checklists.
• Choose from 295 actual past CA Bar essays included in our platform.
• See what the Cal Bar is looking for with a selected answer for each essay—spanning 30 years of administered bar exams.

At present, EssayRx only contains California essays, yet the UBE version is rolling out soon. If you want to hear when it launches, as well as get useful test-taking tips and the latest BarMD news, join our newsletter .

Go beyond the usual bar exam practice questions with EssayRx .

Did you know that we offer a California Essays Course and a Performance Test Course ? Each is structured as a series of live workshops. Even if a course has already begun, you can sign up + catch up to the live sessions. Hope you join us as you prepare for July!

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• Jun 26, 2019

How to write a passing Evidence Essay on the California Bar Exam

We previously discussed how to write a passing Professional Responsibility essay. In this blog, we will provide some tips on how to attack an Evidence (Federal/California) essay on the California Bar Exam. Starting with the big picture, Evidence essays should be discussed in the following manner: 1) Form, 2) Purpose, 3) Presentation, 4) Hearsay, and 5) Privileges.

The initial inquiry is in what form is the essay question presented, in what forum, and in what sequence is the evidence being introduced in. Is there a questions of counsel in quotation marks? When we say form of the question, we mean is it a narrative fact pattern or a transcript? The bar examiners on occasion have used the transcript method, but most commonly we are dealing with a narrative fact pattern. A narrative fact pattern means that your essay needs to be over inclusive as to the issues being raised.

What is the forum of the litigation? Here we are looking to see whether the matter is in state court, federal court, and a civil or criminal matter. What is the sequence of the introduced evidence? Here we are looking to see who is introducing the evidence, plaintiff/prosecution, defense, and is it during a direct or cross examination of a witness. IF a question of counsel is in quotation marks, you need to discuss objections to form of the question, i.e., leading, narrative, speculation, etc.

The next inquiry is what is the purpose for which this evidence is being introduced for? Here you need to discuss logical/legal relevance and rule 403 balancing test. Next you need to determine whether the purpose of introducing the piece of evidence revolves around character evidence . If it does, you need to distinguish character evidence as it applies in Federal and California jurisdictions. In Civil it comes by virtue of the case, or habit evidence, and in Criminal law you are looking to see if either side opens the door for further analysis.

Presentation

Next, we are looking for how the evidence is being presented . Here we are looking for issues revolving around witnesses - witness competency to testify, whether observations are made with personal knowledge, is there impeachment evidence, is there further character evidence, is it opinion/reputation evidence, specific acts, bias, motive, or simply defects in witnesses memory, perception, or knowledge? You need to be looking for any indication of inconsistent statements. Under presentation you need to see if there is documentary evidence being presented? For example, medical records, insurance records, a contract, photographs, etc. If so, you need to discuss the documents reliability and further discuss authentication and the best evidence rule. Look for opinion testimony and whether you need to discuss lay opinion or expert testimony. Look to see if any matters posed in the fact pattern could be judicially noted by the judge. Look to see which party bears the burden of proof in introduction of the evidence. Look to see if any presumptions are applicable.

Next we are looking to see if there are any hearsay issues (which 95% of the time, there will be). At this point you are writing the general rule for hearsay. Is the statement being offered for its truth? If not, it's not hearsay. i.e., verbal acts, legally operative facts, effect on hearer/reader, circumstantial evidence of state of mind, non-human declarations, etc. There are other pieces of evidence offered that are not hearsay, i.e., prior identification and prior inconsistent/consistent statements by a witness. Admissions, including vicarious admissions and co-conspirator statements are also non-hearsay.

We then look for the infamous hearsay exception. unavailability exceptions: declaration against interest, dying declarations, former testimony, etc.; reliability exceptions: excited utterance, present sense impression, state of mind, bodily conditions, etc; documentary exceptions: past recollection recorded, business records, official records, etc; and your other miscellaneous exception, such as the ancient document rule, learned treatise, and federal catch all exception which focuses on the trustworthiness of the evidence.

Lastly we are looking to see if there are any privileges that warrant discussion. Are there any privileged relationships involved? If there is, identity which type of privilege - professional or marital. Look to see who holds the privilege and whether it was ever waived. Discuss the applicable exceptions under Federal and California Law.

And there you have it. Evidence essays have a format to them and you need to write your essay in a format that is familiar to the bar grader. Use this format and checklist to write a passing Evidence essay on the California Bar Exam. For additional help on essay writing, we have former California bar exam graders who will provide you with a mock bar exam score and provide detailed feedback on improvement.

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California Bar Exam: Evidence

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Evidence - Scope

Evidence - questions and selected answers.

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• Last Updated: Jan 24, 2024 4:31 PM
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Legal Three

Evidence Outline for the California Bar Exam

Leading Question – Q’s which suggest an answer.

Direct examination – not allowed except as to preliminary matters.

Cross examination – allowed.

Also allowed if a witness is frail or unable to answer due to physical infirmity , or when a witness is hostile .

Misleading Question – cannot be answered w/o making an unintended admission .

Compound Question – asks more than one Q at a time .

Argumentative Question – Q that contests the testimony of the witness and does not seek info from the witness.

Assuming facts not in question – Q that assumes facts which have not been presented as evidence .

Conclusory Question – calls for opinion/conclusion W is not qualified to make .

Non-responsive answer – W should respond to the Q asked. If W supplies info not elicited by a Q, the add’l info can be stricken as non-responsive i.e. do you know your name? Only permissible answer is yes or no, anything else can be stricken

Narrative – L must ask Q’s (can’t say tell me everything that happened) cannot be open ended

Logical Relevance

Tendency to make a material fact more or less probable than it would be w/o the ev

Must relate to time, event, or person involved in the present litigation.

Special Cases – previous similar occurrences may be relevant if probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice. Similar occurrences: Rhonda’s Custom Routine Habits Can Imply Similar Prior Causes

Prior False Claims or Same Bodily Injury : relevant to prove that:

The present claim is likely to be false;

P’s condition is attributable in whole or in part to the prior injury.

Similar accidents/injuries caused by the same event/condition: admissible to prove:

Existence of a dangerous condition

D had knowledge of the dangerous condition;

Dangerous condition was the cause of the present injury.

Intent/state of mind – previous similar acts admissible to prove present motive or intent when such elements are relevant (i.e. when intent/state of mind at issue)

Rebutting claim of impossibility

Habit – relevant to prove that conduct in conformity with habit.

Habit = person’s regular response to a specific set of circumstances .

Comparable sales to establish value – must be same kind, time, and place

Industrial/Business routine – to show entity acted in conformity w/ routine

Industry practice as evidence of std of care – admissible to show adherence to or deviance from industry wide std of care, but not conclusive.

Legal Relevance – probative value vs. prejudicial effect

Judge discretion if probative value is substantially outweighed by danger of

Unfair prejudice , confusion of issues, misleading the jury, undue delay , waste of time .

Public Policy Exclusions – relevant evidence excluded for public policy reasons

Liability insurance : Admissible to show: ownership or control , to impeach , or as part of an admission .

Inadmissible to show: fault , neg , or ability to pay

Subsequent remedial measures : Admissible to show: ownership/control , feasibility , opposing party has destroyed evidence .

Inadmissible to show: culpable conduct

Settlement offers: Claim or threat of; AND must be disputed as to liability/amount;

Inadmissible to show : fault/liability , or amount of damage ; actual/offers compromises , offers to plead guilty and withdrawn pleas of guilt

Admissions of fact/damage made in course of settlement decisions Inadmissible.

Offers to pay hospital/medical expenses: Inadmissible, ( BUT admissions accompanying offers are admissible .)

Character Evidence – CE may be offered as substantive, rather than impeachment evidence (i) to prove character when it is the ultimate issue in the case, OR (ii) serve as circumstantial evidence of how a person probably acted .

Methods ( Specific acts, opinion, reputation )

Civil Cases – Not admissible unless character at issue in case

5 civil cases where character is at issue: defamation; negligent entrustment; fraud/deceit/misrepresentation; child custody; self defense ).

Method: specific acts, opinion, reputation

Not admissible when offered as circumstantial evidence to infer conduct @ time of litigated event.

Criminal Cases

Character of DEFENDANT – Only accused may initiate (opening door); P cannot initiate ev of bad character of D

Open door rule: accused offers evidence of good character in form of reputation and opinion to show disposition to infer innocence. This opens door for P.

After D offers evidence of good character, P may respond by inquiry on cross-examination of D’s good character witness about any specific acts which would tarnish D’s rep for trait or  No extrinsic allowed for specific acts, only on cross (and MIMIC exception)

Note: P may not call a W to testify re specific bad acts (limited to cross)

After D offers good character E  Extrinsic E OK for bad rep or opinion – i.e. P may respond by calling W to testify to bad opinions or bad reputation of accused (NOT specific acts)

P may use D’s past conduct to impeach D’s credibility as a W (D must take stand as a witness)

Character of VICTIM –

Homicide or assault (not rape): D may initiate w/ reputation or opinion testimony to establish self defense (when relevant to show D’s innocence); Only reputation or opinion

P may counter w/ rep or opinion evidence of: V’s good character or D’s bad character for same trait .

Specific act /conduct known/communicated to D b/4 event is admissible to show D’s state of mind

Rape – in civil/crim proceeding, evidence of sexual behavior of V generally inadmissible.

Crim cases: evidence of V’s sexual history to prove consent limited as follows:

No opinion or reputation

Specific instances of sexual behavior admissible only:

If offered to prove that 3p was source of semen

To show prior acts of consensual sex b/n V/D,

Exclusion would violate accused’s constit rights.

Note: P can introduce E of specific instances for any reason

Civil cases : E of V’s sexual behavior admissible if not excluded by other rules and probative value substantially outweighs danger of harm to V and of unfair prejudice to any party.

Procedure: for V’s sexual behavior to be admissible, D must give notice and an in camera hearing must be held.

Admissible if independently relevant .

Prior acts of misconduct/crimes (not charged) allowed when there is (1) MIMIC ; (2) sufficient evidence to support jury finding that D committed prior act ; and (3) probative value does not outweigh unfair prejudice (403):

Motive (motive for crime to be charged),

Intent (to show knowledge on part of D or to prove mental state)

Mistake or absence of mistake ,

Identity : connects D to the crime

MO: used to prove id (i.e. it’s D’s trademark/signature crime)

Common plan or scheme (part of same transaction)

JUDICIAL NOTICE – recognition of a fact as true w/o formal presentation of evidence.

Facts appropriate for JN: cts take JN of indisputable facts that are matters of common knowledge in the comm . (notorious facts) or capable of verification (manifest facts – i.e. scientific principles)

Procedure: Party must formally request that notice be taken of a particular fact.

Civil = conclusive.

Criminal = Jury may accept or reject.

Must take notice of fed or state laws

May take notice of other facts or laws (i.e. municipal ordinances)

PRESENTATION

Real Evidence (actual physical evidence)

Authentication – recognition or chain of custody .

Balancing Test

Documentary Evidence – writing must be authenticated by proof that shows that the writing is what the proponent claims it is.

Authentication ( doc. is what it purports to be )

Pleading or stipulation .

Evidence of authenticity of writing

Direct evidence

Admissions (by party against whom it is offered)

Eyewitness testimony – writing may be authenticated by one who sees it executed/hears it acknowledged.

Handwriting verification – by non expert ( lay witness ) familiar w/ handwriting, or opinion of expert who has made comparison; trier of fact may also compare.

Ancient documents :

At least 20 years old

In such condition as to be free from suspicion as to authenticity; and

Found in place where such writing likely to be kept.

Reply letter doctrine : letter written in response to a comm. sent to claimed author.

Photographs: may be authenticated by a W familiar w/ the scene or person who took pic .

Unattended camera: show cam was properly operating and photo developed from film of that cam

X-rays : process used is accurate , machine in working order , and operator qualified to operate it. Custodial chain must be established.

Medical test results

Authentication of Oral Statement

Voice identification

Telephone conversation.

Self-authenticating documents – extrinsic evidence of authenticity not req’d for:

certified copies of public records ,

official publications (i.e. books/pamphlets from public authority such as DMV),

newspapers ,

trade inscriptions ,

acknowledged docs (affidavit attached recognizing signature),

signatures on certain commercial docs (pursuant to UCC)

Certified business records .

Best Evidence Rule – Party seeking to prove contents of writing must either (1) produce original document , or (2) account satisfactorily for its absence .

Applicability: Rule applies where writing is (1) legally operative or dispositive instrument , or (2) knowledge of W concerning a fact results from having read it in the doc – i.e. W has no personal knowledge .

Does NOT apply: facts to be proved exist independent from writing (i.e. W has personal knowledge), writing collateral to litigated issue,

Definition of original – includes copies if uncontested.

Secondary admissible if reasonable explanation for absence of original (i.e. loss/destruction, in possession of 3p outside jxd and unobtainable, in possession of adversary who fails to produce after due notice).

Modifications to BER:

Certified copies of public records are ok

Voluminous documents : can offer summary, chart, etc if: voluminous originals would be admissible if offered, and opponent has access to originals

Duplicates :

CL : dups were copies

FRE : dups are copies produced by any technique which avoids casual errors and accurately reproduces the original

Under FRE, dups admissible to same extent as original unless:

Genuine Q raised re authenticity, or

Under circumstances, unfair to admit dup in lieu of original.

Parol Evidence Rule – prior/contemporaneous agreements merge

Testimonial Evidence

Competency of Witness

W must possess 4 testimonial attributes: capacity to observe , to recollect , to communicate , and to appreciate the obligation to speak truthfully .

Fed Rules of Competency: W must have personal knowledge of the matter, and W must declare he will testify truthfully – usually thru oath/affirmation

Dead Man’s acts: provides that a person interested in the event is incompetent to testify to a personal transaction/communication w/ deceased when offered against the rep or successors in interest of the deceased (NO FRE)

Use of memoranda – A witness cannot read her testimony from a prepared memorandum, except in certain circumstances:

Refreshing recollection : W may use ANYTHING (even hearsay) for purpose of refreshing her present recollection (but cannot read from writing).

Past recollection recorded : Writing may be read into evidence if proper foundation is laid:

W once had personal knowledge;

Writing made by W or under his direction, or adopted by W;

Writing timely made when matter fresh in W’s mind;

The writing is accurate ;

W has insufficient recollection to testify

Opinion Testimony .

Lay witness – generally inadmissible.

Exception : Admissible when it is (1) rationally based on W’s perception , (2) helpful , (3) and not based upon specialized knowledge .

Examples – Appearance of a person, state of emotion, sense recognition, voice/handwriting identification, speed, intoxication.

Expert Witness –

Expert may state an opinion/conclusion if:

Scientific, technical or specialized knowledge would assist trier of fact ,

W is qualified as an expert (i.e. possesses special knowledge, skill, experience, training, or education),

Expert possesses reasonable probability re accuracy of opinion ,

Opinion supported by a proper factual basis :

personal observation

facts made known to expert at trial

facts not known personally but supplied to him outside c-room and of a type reasonably relied upon by experts in field.

Reliance via Daubert Test (low error rate, peer reviewed/published, capable of testing, and reasonable level of acceptance)

Determined by trial judge by prep of ev

Authoritative texts and treaties – expert may be x-examined re statements in any publication established as reliable authority by testimony of any expert or by judicial notice. Under FRE, these texts can be used to impeach and as substantive evidence subject to:

Expert must be on stand when excerpt read from treatise; and

Relevant portion read into evidence but not received as an exhibit.

Cross Examination

Scope – cross gen limited to scope of direct , including all reasonable inferences that may be drawn from it, AND testing the credibility of W .

If want to Q beyond scope of direct, must call W as your own later

Note: scope is usually a matter of judicial discretion.

Collateral matters – cross-examiner bound by answers of W to questions re collateral matters

Credibility – Impeachment

Accrediting own witness – no bolstering own W unless there has been appropriate impeachment first .

Allowed if PCS of identification.

Impeachment .

Cross examination

Extrinsic evidence (putting other W’s on stand who will introduce facts discrediting his testimony)

Impeachment Devices :

Prior Inconsistent Statement (W has made statements inconsistent w/ present testimony)

On cross or by extrinsic evidence (if not collateral matter)

Foundation for Extrinsic Evidence – Wit at some point given opportunity to explain/deny the statement. (Except: inconsist statement by hearsay declarant – not offered for truth)

Evidentiary effect – PIS are hearsay, admissible only for impeachment. But, if made under oath at a prior proceeding , it is admissible nonhearsay and may be admitted as substantive evidence offered for truth .

Interest, Bias or Motive .

On cross OR by extrinsic evidence .

Foundation-Witness must first be asked about facts on c-ex.

Prior Conviction of Crime – must be felony/crime involving dishonesty (arrest/indictment not sufficient)

On cross or by record of judgment

Crimes of dishonesty – no discretion by ct to bar impeachment.

Felony NOT involving dishonesty : ct has discretion to exclude if:

Criminal D and P has not shown that conviction’s probative value outweighs its prejudicial effect, or

Ct determines that conviction’s probative value outweighs its prejudicial effect.

Remote convictions (> 10 years) not admissible.

Foundation – none req’d.

Specific Acts of Deceit and Lying – Bad Acts

Only on cross.

Allowed subject to Rule 403 balancing;

Act must be probative of truthfulness (i.e. act of deceit or lying)

Good faith inquiry on c-ex, extrinsic evidence not admissible (only on cross), no inquires re arrests.

Bad Reputation for Truth and Veracity

Only by calling other witnesses (W can state opinion but not refer to specific acts)

Sensory Deficiency – extrinsic E or c-ex

Impeachment of hearsay declarant – under FRE, credibility of s/o who does not testify but whose out of ct statement is introduced may be attacked.

Impeachment on a collateral matter – prohibited

Rehabilitation

Redirect – witness may explain or clarify.

Another witness may be called (for good reputation)

Prior consistent statement – to rebut express or implied charge of recent fabrication, improper influence/motive. PCS comes in for truth.

Applicable law.

General approach

Privileged relationship?

Confidential Communication?

Holder of Privilege?

Exceptions – future crime/fraud, malpractice, and communication put at issue.

Relationships

Attorney-Client – protects confidential communications , not physical evidence or pre-existing docs.

Client holds privilege.

Applies even after client’s death.

Privilege does not apply:

L’s services were sought to aid in planning/commission of something client should have known was a crime or fraud .

Comm relevant to issue of breach of duty in a dispute b/n attorney and client.

Physician-patient ;

Requirements :

Professional relationship

Info acquired during course of treatment;

Info necessary for treatment (nonmedical info not privileged)

Patient puts his physical condition in issue (PI cases);

Physician’s assistance sought to aid wrongdoing;

Comm relevant to issue of breach of duty in dispute b/n physician and patient;

Patient agreed by K to waive privilege

Marital Privileges

Spousal immunity : protects against forced testimony re anything; married person whose spouse is a D in a criminal case may not be called as witness by P.

Valid marriage at time of trial (priv lasts only during marriage)

Criminal case;

Privilege belongs to witness-spouse.

Priv can be claimed only during marriage, but covers info learned b/4 and during marriage.

Privilege for Confidential Marital Communication: in any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged.

Marital relationship must exist when comm. made

Divorce does not terminate priv

Comm must be made in reliance upon the intimacy of the marriage.

Both spouses have privilege not to disclose, and to prevent other from disclosing.

Privilege survives marriage but covers only statements made during marriage.

Psychotherapist/Social Worker – Client Privilege : Works same as attorney-client privilege.

Clergy/Accountant : similar to A/C privilege

Journalist : no constit right for journalist to protect source of info.

Definition – out of court statement, offered to prove the truth of the matter asserted.

Must be an out of court statement by a person (not dog or testimony about what radar gun said)

Not Hearsay

Statement NOT offered for truth

Non assertive conduct.

Verbal acts or legally operative facts – words spoken or written have relevant legal significance by virtue of being spoken/written

Words of K, defamatory words, conspiracy, misrep, permission, cancellation

Verbal objects – statement offered only as a symbol or identifier on an object

Effect on listener – statement that shows why person who heard it acted or did not act a certain way;

i.e. to prove notice in neg cases/to prove cop had PC to arrest

Circumstantial Evidence of Declarant’s state of mind – (i.e. evidence of insanity/knowledge – “I’m Dracula” to prove insanity)

Lie – not HS if introduced to show falsity of what was said.

Impeachment.

Statements that are Non-Hearsay Under the FRE

Prior Statements by Witnesses (in Ct Stmt)

Prior Inconsistent statement given under oath at a prior proceeding.

Prior Consistent Statement offered to rebut a charge of recent fabrication or improper influence or motive .

Stmt made b/4 any motive to lie/exaggerate arose;

No oath req’d

Prior statement is of Identification of a person made after perceiving him

Admissions by a Party Opponent – PK NOT req’d

Admission – Statement amounting to a prior acknowledgment by a party of a relevant fact offered by a party opponent . Does not need to be against interest

Vicarious admissions – matter w/in scope of employment by EE/Agent/Co-Conspirator during relationship

Principal/Agent; Partners; EE/ER; Co-conspirators (Stmt in furtherance of conspiracy when declarant participating in conspiracy)

Adoptive admission – expressly/impliedly adopting or acquiescing in statement of another

Silence – treated as an admission if: (1) party heard and understood the statement; (2) party was physically and mentally capable of denying statement; and (3) reasonable person would have denied the accusation.

Hearsay Exceptions

Declarant Unavailable – Privilege , DL refuses , DL’s memory fails , DL is dead/sick , and proponent cannot procure DL’s attendance – Pneumonic : “Fuck Dying Declarations Against Family Wrongdoing” Fuck Some Dumb Stupid Whores >>

Former Testimony : testimony given in earlier proceeding admissible if:

Party against whom testimony is offered had opportunity to examine and motive to conduct examination was similar , or

Civil case Exception – party against whom testimony is offered was in privity w/ party to earlier proceeding .

NO Grand Jury Testimony b/c no opp to cross

Statement Against Interest : statement against DL’s pecuniary ($), proprietary (property) or penal interest (jail) at time when made;

DL must have had PK of the facts and aware that statement against his interest when made

Stmt exposing DL to crim liability and exculpating accused NOT admissible unless “corroborating circumstances ” indicate trustworthiness

Dying Declaration : Stmt under a sense of impending death;

Must be Stmt regarding cause or circumstances of death

ONLY Homicide or Civil

Need not die

Statement of Personal or Family History : made by family member or s/o intimately associated w/ family (i.e. re death, birth, marriage)

Wrongdoing : Stmt offered against party who wrongfully procured DL’s unavailability

Availability Immaterial .

Present State of Mind: Stmt of DL’s then existing state of mind , emotion , sensation , or physical condition

Usually used to show DL’s intent (declaration of present intent to do something in near future offered to infer future act was done).

Admissible when state of mind is a material issue OR to show subsequent acts of DL .

Excited Utterance : Startling event , made under stress of excitement of startling event (time lapse ok if still excited) , Concerning facts of startling event .

Present Sense Impression : Stmt describing or explaining an event or condition while DL perceiving event/condition or immediately thereafter.

No appreciable time lapse

Declaration of Past Physical Condition (statement to physician) : Stmt made to medical personnel to assist in diagnosing/treating the condition;

Must be pertinent to diagnosis/treatment (even if diagnosis is only for purpose of giving testimony)

Business Records :

Writing made in the regular course of business at or near the time of the event by one who is under a duty to record such information is admissible;

Entry must be connected to the business.

Only stmts that entrant/DL had personal knowledge OR w/in PK of s/o w/ duty to transmit such matters to entrant

Note: Stmts of W’s or parties in police report NOT admissible b/c these ppl not under a business duty to convey info to police .

Authenticity : custodian may testify that record is a bus record, OR certify in writing that it is a biz record .

Lack of Biz Record may be used to show nonoccurrence of event

Past Recollection Recorded : admissible if (1) the witness at one time had personal knowledge of the facts recited in the writing, (2) the writing was made by the witness, (3) the writing was timely made, (4) the writing was accurate, and (5) the witness has insufficient recollection at trial.

Public Records/Reports : records, reports, or investigations involving activities of and an office or agency, made at or near the time of the event by one who is under a duty to record such information.

Not admissible against D in criminal case

Includes opinions (i.e. opinions of public officials made in police report)

Absence of public record admissible to prove nonoccurrence .

Records of Prior Felony Conviction : available in any crim and civil case to prove any fact essential to judgment (but in crim case, govt may use evidence for this purpose only against accused; may only be used for impeachment purposes of others).

Ancient Documents : statements in authenticated document 20 years old or more are admissible.

Learned Treatise : admissible as substantive proof if:

relied upon by expert witness; and

Established as reliable authority by testimony of that W , OR other testimony or judicial notice

Family Records : statement of fact found in family Bibles , jewelry engravings , tombstones , etc.

Residual Catch All – Circumstantial guarantees of trustworthiness , necessary and notice to adversary as to nature of statement.

CONFRONTATION CLAUSE – hearsay statement may not be used in a criminal case if (i) out-of-Ct-stmt ; (ii) Unavailable DL ; (iii) Stmt is Testimonial (Stmt in Ct or to further investigation aimed at prosecution – not during emergency); (iv) no chance to X-examine when stmt was made

BURDENS OF PROOF

Burden of Producing Evidence: party w/ burden of pleading has burden of producing or going forward w/ev sufficient to make out a prima facie case. Then, up to incumbent to come forward w/ev to rebut

Burden of Persuasion (Proof): after parties have sustained burden of production of evidence, Q is whether party w/ burden of persuasion has satisfied it.

Civil cases: burden of persuasion = preponderance of the evidence (more probably true than not true);

Criminal cases: beyond a reasonable doubt.

DETERMINATION OF ADMISSIBILITY

GR: Q’s of law are for trial judge to determine and questions of fact are for the jury.

Preliminary facts decided by jury: agency, authenticity of docs, credibility of W, and personal knowledge

Preliminary facts decided by judge: facts affecting competency of evidence, requirements for hearsay exceptions, privileges, expert testimony and mental competence.

FEDERAL VS. STATE LAW

Diversity Cases

State substantive law; federal procedural laws

3 instances where state evidence law will apply in fed ct if state substantive law applies:

Burdens of proof and presumptions

Rules re competency of W (i.e. Dead Man statute)

Federal Question

Privileges (fed common law applies)

Fed common law has not recognized physician/patient privilege.

CALIFORNIA DISTINCTIONS

FRE & CEC: Relevant = tendency to make a fact of consequence more or less probable

CEC: Fact of consequence must be in dispute

Exclusion for Policy Reasons:

Subsequent Remedial Measures

CEC: SRM is admissible in strict liability defective design

Settlement Offers

FRE & CEC: Stmts during settlement offers are inadmissible fault or liability

CEC: Stmts in mediation also inadmissible

Pymt or Offer to Pay Medical Expenses

FRE & CEC: Offers to pay medical expenses are inadmissible

FRE: Admissions of fact during offer are admissible

CEC: Admissions of fact during offer are NOT admissible

Expression of Sympathy

CEC: Civil : Sympathy Stmts about V’s suffering or death are NOT admissible ; BUT stmts of fault ARE admissible

Pleas later withdrawn, offers to plea & related Stmts

FRE & CEC: inadmissible in Civil and Criminal under BOTH CEC and FRE

CEC: BUT Prop 8 effect (criminal) unknown

CHARACTER EVIDENCE

CIVIL Cases:

General Rule: Both CEC and FRE – Character Evidence is inadmissible to prove conduct (unless character at issue – must be 1 of 5 civil cases)

FRE: Prior Sexual Assault or Child Molestation act Exception in civil case of sexual assault or child molestation

CEC: NO Sexual Assault or Child Molestation Exception in civil case

Criminal Cases:

General Rule: is that propensity E is inadmissible BUT D can open either door (D’s door or V’s Door) and P can rebut

When D can open the D’s Door or V’s Door

FRE and Direct: Rep and Opinion OK but NOT Specific Instances

FRE and Cross: Rep, Opinion and Specific Instances are OK

CEC Direct and Cross: Rep, Opinion and Specific Instances are OK subject to balancing (probative v. prejudicial)

Exceptions: where P can 1 st offer E of D’s character to prove conduct:

FRE and CEC: Sexual Assault/Child Molestation Exception P can be first to offer D’s prior sex assault/child molestation acts

FRE: D offered character E of V, P may offer character E that D has same character trait

CEC: In a Domestic Violence/Elder Case P may first offer D’s prior acts of domestic violence/elder abuse

CEC: If D offered character E that V is violent , THEN P can offer character E that D is violent

Exceptions: where P can be the 1 st to open V’s door:

FRE (specific instance exception): in homicide case , after D claims V attacked first/self defense , prosecution can offer evidence of V’s peaceful character

CEC: In any criminal case where V’s character is relevant (i.e. D alleges affirmative defense of self defense  P can offer rep, opinion or SI of V’s peaceful character in P’s CIC)

TESTIMONIAL EVIDENCE

FRE & CEC: (i) PK; (ii) ability to communicate; (iii) recall what was perceived; (iv) take oath

CEC: also requires W understand legal duty to tell truth

CEC and recalling: Civil disqualifies hypnotizing to refresh ; Criminal hypnotizing to refresh OK if police and not suggestive procedure

Expert Opinion Testimony

FRE & CEC requirements: (i) helpful to jury; (ii) qualified; (iii) reasonable degree of certainty; (iv) factual basis; (v) reliable principles, reliably applied

CEC: Reliability = Generally accepted by experts in the field

CEC: Learned Treatises = needs general notoriety (almost never applicable)

Impeachment w/ Inconsistent Stmt

FRE & CEC: NOT HS if offered to impeach

FRE: under oath than can also be offered for truth, otherwise just offered to impeach

CEC: HS Exception = All Inconsistent Stmt of W regardless of oath or not, are admissible to impeach AND for their truth

Impeachment w/ Prior Felony Conviction

FRE: all felonies involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;

FRE: Felonies not involving lying must be balanced (prej. v. prob.)

EE = Admissible to impeach

CEC: all felonies involving “moral turpitude” are admissible subject to balancing

CEC: felonies not involving “moral turpitude = inadmissible

Moral Turpitude = lying, violence, theft, extreme recklessness, and sexual misconduct  NOT mere negligent or unintentional act

No 10 yr limitation

Impeachment w/ Prior Misdemeanor Conviction

FRE: all misdemeanors involving lying are admissible w/o balancing UNLESS older than 10 yrs then balancing required;

FRE: All misdemeanors not involving lying = inadmissible

CEC: Misdemeanor Inadmissible in Civil

CEC: Misdemeanor of Moral Turpitude Admissible in Criminal subject to balancing

EE = Admissible

Prior Bad Acts (PBA)(Non-Conviction)

FRE: PBA involving lying = Admissible in Civil AND Criminal subject to balancing

ONLY on Cross

EE = Inadmissible

CEC: PBA ( regardless of moral turpitude) = ALWAYS Inadmissible in Civil

CEC: PBA of Moral Turpitude = Admissible in Criminal subject to balancing

Cross AND EE = Admissible

HEARSAY : CEC: Only has HS Exceptions

FRE: Not-HS ; CEC: HS Exception

Admissions of a Party Opponent

FRE & CEC: Stmt by opponent (or attributable to opponent) offered by party opponent

FRE: Not-Hearsay ; CEC: HS Exception

FRE: Vicarious Admissions – Stmt by EE , concerned matter w/in scope , while employed

CEC: Vicarious Admissions – only under theory of Respondeat Superior

Prior Inconsistent Stmt of a W

FRE & CEC: not HS if offered just to impeach

FRE: if under oath can offer both to impeach and for truth

CEC: All inconsistent stmts can be offered for both impeachment and truth , regardless of whether under oath

Prior Consistent Stmt of W now testifying at trial (to rebut)

FRE & CEC: Admissible if made before bribe or inconsistent Stmt

HS and DL Unavailable ( FRE & CEC: Unavailable – (i) privilege; (ii) dead or sick; (iii) cannot procure attendance by reasonable means; FRE: DL refuses despite Ct order; DL cannot remember the subject; CEC: (i) total memory loss ; (ii) DL refuses to testify b/c of fear

Declaration Against Interest

FRE & CEC: Unavailable ; stmt against financial ($ and property) or pecuniary (criminal liability) interest

FRE: Stmt exculpating D must have corroborating E

CEC: also includes stmt against social interest

Former Testimony

FRE & CEC: former testimony and unavailable ; party against whom offered was a party in the earlier proceeding and opportunity to cross with similar motive

FRE: in a Civil case party against whom offered was not a party but had privity (predecessor-in-interest) and opportunity to cross with similar motive

CEC: in a Civil case party against whom offered was not a party but original party had opportunity to cross with similar motive

CEC: DL not unavailable and former testimony is offered against original testifying party OR predecessor in interest

Dying Declaration

FRE: Civil or homicide , DL unavailable , believes he is about to die , describes cause/condition , death not req’d just unavailability

CEC: Both Civil and Criminal , DL is dead , believes he is about to die , describes cause/condition

OJ Exception

CEC: DL unavailable, Stmt by DL describing injury or threat at or near the time of injury or threat in writing or recorded to police or medical personnel

HS and DL Immaterial

Contemporaneous Statement (Present Sense Impression)

FRE: Stmt about event or condition while perceiving or immediately thereafter

CEC: Stmt about conduct of DL while DL was engaging in it

Spontaneous Statement (Excited Utterance)

FRE and CEC: Stmt relating to startling event at or near the time of the startling event while still under excitement

Present State of Mind

FRE and CEC: Stmt of DL’s then existing state of mind , emotion , sensation , or physical condition

Declaration of Past Physical Condition (statement to physician)

FRE: Stmt made to medical personnel to assist in diagnosing/treating the condition;

CEC: Stmt by a minor made to medical personnel to assist in diagnosing/treating child abuse ;

Past Physical or Medical Condition, including Stmt of Intent

CEC: DL unavailable , Stmt of past physical or mental condition or Stmt of intention if condition/intention is at issue

Business Records

FRE & CEC: Made in regular course of business and customary to make type of entry involved (i.e. entrant had a duty to make entry ); Entry must be germane to the business; DL needs PK OR w/in PK of s/o w/ duty to transmit such matters to entrant

HS NOTE: Stmts of W’s or parties in police report NOT admissible b/c these ppl not under a business duty to convey info to police.

Authenticity : custodian may testify that record is a bus record, OR certify in writing that it is a bus record .

CEC: restricts opinions/diagnoses to simple opinions/diagnoses

Past Recollection Recorded

FRE & CEC: if W’s memory cannot be revived , party may introduce a memorandum made at or near time of event ; W had PK , made/adopted by W when fresh in memory .

Public Records/Reports

FRE: writing must have been made by and w/in scope of duty of public employee , made at or near time of event .

CEC: Admissible in BOTH Civil and Criminal

Records of Prior Felony Conviction

FRE & CEC available in any crim and civil case to prove any fact essential to judgment (but in crim case, govt. may use evidence for this purpose only against accused; may only be used for impeachment purposes of others).

CEC Analysis: has HS exception for Civil and Prop 8 makes it admissible in criminal

Ancient Documents

FRE: statements in authenticated document 20 years old or more are admissible.

CEC: statements in authenticated document 30 years old or more are admissible.

Secondary Evidence Rule – (Best Evidence Rule)

Party seeking to prove contents of writing must either (1) produce original document , or (2) account satisfactorily for its absence .

Secondary admissible if reasonable explanation for absence of og (i.e. loss/destruction, og in possession of 3p outside jxd and unobtainable, og in poss of adversary who fails to produce og after due notice).

FRE : dups are a copy produced by any technique which avoids casual errors and accurately reproduces the original

Under FRE, dups admissible to same extent as og unless:

Genuine Q raised re authenticity of og, or

Under circumstances, unfair to admit dup in lieu of og.

CEC: includes handwritten notes

Attorney/Client Privilege

FRE & CEC: the same except . . .

CEC: A/C Privilege Exception – privilege does not apply where lawyer believes disclosure is necessary to prevent death or substantial bodily harm

Patient/Doctor Privilege

FRE: does not exist

CEC: CA has it

Does NOT apply in criminal cases

Psychotherapist/Patient Privilege

CEC: Does not apply if: (i) RC to believe danger to himself or others and disclosure is necessary to prevent danger

Spousal Privilege

FRE: testimonial privilege applies only in Criminal cases

CEC: testimonial privilege applies in BOTH Criminal and Civil cases

FRE & CEC: confidential spousal applies in BOTH Criminal and Civil

JUDICIAL NOTICE

CEC: whether requested or not , must take JN of matters generally requested w/in jxd

CEC: must accept JN in BOTH Criminal and Civil

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California Bar Exam and MPRE: 1. Subjects Tested on the Exam

• 1. Subjects Tested on the Exam
• 2. The Essay Component
• 3. The Performance Tests
• 4. The Multistate Bar Exam
• 5. Bar Exam Fees

About the MPRE

• Planning During Law School & Checklist
• 1. Commercial Bar Review Courses
• 2. Free Online Study Aids
• 3. Bar Review Books

Guide Outline

Introduction

About the Bar Exam

Subjects Tested on the Exam

The Essay Component

The Performance Tests

The Multistate Bar Exam

Bar Exam Fees

Planning During Law School

Second and Third Years

Studying for the Bar

Commercial Bar Review Courses

Free Online Study Aids

Bar Review Books

Helpful Information

• The State Bar of California [URL] Provides information regarding the California Bar Examination, including a summary of the requirements for admission to practice law in California, information about how to register to take the bar exam, links to forms, and other important details.
• MBE Information Provides a description of the Multistate Bar Examination, or the multiple-choice portion of the bar exam. Outlines subjects covered, provides sample questions, and guidelines for taking the exam.
• MPRE Information Provides a description of the MPRE, including an outline of the subject matter covered, sample questions, and guidelines for taking the exam.

Subjects Covered on the California Bar Exam

The CA Bar Exam may ask essay questions involving issues from all of the subjects below. You can find additional information about the scope of coverage of these subjects on the California Bar Exam webpage .

Courses offered at the law school that cover the above topics include:

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• Next: 2. The Essay Component >>
• Last Updated: Oct 2, 2023 10:14 AM
• URL: https://libguides.law.ucla.edu/calbarexam

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