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Evidence: A question is being asked or an evidentiary

item will be introduced, but is it appropriate?

Washburn University School of Law, Bar Services | Evidence MBE Flow Chart | 1

Form: In what way is the evidence being introduced?

In a Civil or Criminal case?


On direct, cross, or redirect examination?
Was witness asked a question that should
have been objected to?

Purpose: What is the purpose for introducing the


evidence?

Does it have Relevance to the case? If yes, it can be


admissible. If no, then it is excluded.
Does it show Habit that could prove that conduct on a specific
occasion conformed with the habit? This is admissible.
Is the evidence relevant but excluded
based on policy reasons?

1. Liability insurance?
2. Subsequent
remedial
measures?
3. Settlement offer?
4. Withdrawn pleas?
5. Evidence of
medical payment?

Is the evidence relevant but it is also


an example of character evidence?
Unless an exception exists,
character evidence is generally
inadmissible to prove conformity to
the act.

Exceptions in civil cases

Competency issues?
Presentation: No problem with
form and purpose, so how is the
evidence being presented?

As witness
testimony?

Is something being
introduced to
impeach the
witness?

Exceptions in criminal
cases

What can come in to show


untruthfulness/credibility?
What can come in to show
bias/motive?
What can come in to show
prior inconsistent statement?

Note: This flow chart


was prepared by
Washburn Bar Services
and is merely intended
as a supplement to
helping students gain
practical comprehension
of the MBE subject that
it reflects. There may
be more issues or more
depth of issues that will
need to be covered by
students in a usual bar
study. It is not intended
to replace materials for
a comprehensive bar
program, such as BarBri
or Kaplan.

What can come in to show


sensory defects?

Is something being
introduced to help the
witnesss recollection?

As Real or Demonstrative
evidence?

Was it properly authenticated?


Rules differ amongst writings,
photos, self-authenticating
docs, and ancient documents.

Past recollection
recorded?
Refreshing
recollection?

Washburn University School of Law, Bar Services | Evidence MBE Flow Chart | 2

Always analyze the following issues for


documentary evidence or writings:
1. Relevance (see above);
2. Authentication issues;
3. Best evidence rule; AND
4. Hearsay (see below).

As documentary
evidence or writing?

If lay witness, are requirements met?


As opinion testimony?
If expert witness, are requirements met?
Presented for judicial notice?
Presented under a presumption?

Hearsay: Will the evidence be


excluded under the Hearsay Rule?

1. Is it hearsay or non-hearsay? ****On an essay, always establish


this first to get full points. Never just jump to an exception.
2. Can it be excluded under the FRE (e.g., certain admissions, or
prior inconsistent statements, etc.)? *****On an essay, discuss ALL
possible exclusions.

Note: This flow chart


was prepared by
Washburn Bar Services
and is merely intended
as a supplement to
helping students gain
practical comprehension
of the MBE subject that
it reflects. There may
be more issues or more
depth of issues that will
need to be covered by
students in a usual bar
study. It is not intended
to replace materials for
a comprehensive bar
program, such as BarBri
or Kaplan.

3. Does an exception (or exceptions) apply under the FRE (i.e.


certain admissions, or prior inconsistent statements)? ******On an
essay, discuss ALL possible exceptions.
Declarant unavailable
exceptions include:
1. Dying declarations.
2. Former testimonies.
3. Statements Against
Interest.
4. Statements of Personal or
Family History.
****On an essay, discuss that
declarant is unavailable first
before discussing exceptions.

Declarants availability immaterial


exceptions:
1. Present Sense Impressions.
2. Excited Utterances.
3. Present state of mind.
4. Declarations of Physical
Conditions.
5. Business/Public Records.
6. Past Recollection Recorded.
7. Learned Treatises.
8. FRE Catch-all

4. Does the Confrontation Clause under the U.S. Constitution apply?


5. Is there a multiple hearsay issue? Repeat the above 4 steps, if so.

Privileges: Does a privilege apply to keep the evidence out? And if so, was it waived or are there exceptions?

Attorney-client?

Spousal?

Marital
communications?

Doctor-patient?

Psychotherapist-client?