Evidence

Core MBE-tested Evidence rules, each with a primary-source citation. Open in rapid-review mode →

• Relevance StandardEvidence is relevant if it has any tendency to make a fact of consequence more or less probable.
• Rule 403 BalancingRelevant evidence may be excluded if its probative value is substantially outweighed by dangers like unfair prejudice…
• Character Evidence: Propensity BanCharacter evidence is generally inadmissible to prove conduct in conformity with a character trait.
• Character Evidence in Criminal CasesA defendant may offer pertinent character evidence; prosecution may rebut once door is opened.
• Victim Character in Self-DefenseDefendants may introduce victim’s violent character to show initial aggression; prosecution may rebut with peaceful…
• Specific Acts for Non-PropensitySpecific acts may be admitted for non-propensity purposes such as motive, intent, identity, plan, or absence of mistake.
• MIMIC RuleMIMIC evidence (motive, intent, identity, common plan) is admissible if relevant and not propensity-based.
• Character in Civil CasesCharacter evidence is generally inadmissible in civil cases unless directly at issue.
• Rape Shield RuleRape shield bars evidence of a victim’s sexual behavior or predisposition except in narrow exceptions.
• Habit EvidenceHabit evidence is admissible to show conduct in conformity with a regular response to repeated situations.
• Subsequent Remedial MeasuresSubsequent remedial measures are inadmissible to prove negligence, defect, or need for warning.
• Offers to CompromiseOffers to compromise and related statements are inadmissible to prove liability.
• Medical PaymentsOffers to pay medical expenses are inadmissible to prove liability, but accompanying statements are not excluded.
• Liability InsuranceEvidence of liability insurance is inadmissible to prove negligence or wrongdoing.
• Plea NegotiationsPlea statements and withdrawn pleas are inadmissible against the defendant.
• Relevance of Subsequent Remedial MeasuresSRM may be admitted to show ownership, control, or feasibility when disputed.

• Authentication RequirementReal and documentary evidence must be authenticated by proof sufficient to support a finding of genuineness.
• Best Evidence RuleTo prove contents of a writing, original or reliable duplicates are required unless an exception applies.
• Authentication of WritingsWritings require authentication by testimony, handwriting, or circumstantial proof.
• Voice IdentificationVoices may be identified by familiarity acquired before or after the event.
• Chain of CustodyReal evidence must be shown to be in substantially the same condition when offered.
• Original Writing RuleOriginal documents are required to prove contents unless duplicates or exceptions apply.

• Expert Testimony StandardExpert testimony is admissible when the witness is qualified and the testimony is reliable and helpful.
• Lay Opinion TestimonyLay opinions must be rationally based on perception and helpful to understanding the testimony.
• Judicial Control of WitnessesCourts may control mode and order of interrogation to make procedures effective and avoid harassment.
• Refreshing RecollectionA witness may refresh memory with any item, but opposing party may inspect and cross-examine on it.

• Impeachment: General RuleAny party may impeach any witness using permissible methods.
• Impeachment by BiasImpeachment for bias is always allowed and never collateral.
• Impeachment by Prior Inconsistent StatementA witness may be impeached with prior inconsistent statements; extrinsic evidence allowed unless collateral.
• Impeachment by Character for UntruthfulnessCharacter for untruthfulness may be shown by opinion or reputation evidence.
• Impeachment by Specific ActsSpecific acts relating to untruthfulness may be inquired into on cross but not proven with extrinsic evidence.
• Impeachment by Prior ConvictionsPrior felonies and crimes of dishonesty are admissible subject to Rule 403 and timing limits.
• Rehabilitation of WitnessRehabilitation permitted when credibility attacked; prior consistent statements admissible if offered to rebut…

• Hearsay DefinitionHearsay is an out-of-court statement offered for the truth of the matter asserted.
• Non-Hearsay UsesStatements offered to show effect on listener, notice, verbal acts, or mental state are not hearsay.
• Opposing Party StatementsStatements of a party opponent are not hearsay when offered against that party.
• Adoptive AdmissionsAdmissions may be adopted by silence when a reasonable person would deny the statement.
• Co-Conspirator StatementsStatements by a co-conspirator during and in furtherance of the conspiracy are non-hearsay.
• Prior Inconsistent Statements (Substantive)Prior inconsistent statements under oath at proceedings are non-hearsay.
• Prior Consistent StatementsPrior consistent statements are non-hearsay when offered to rebut fabrication or improper motive.
• Prior IdentificationsPrior identifications made after perceiving a person are non-hearsay.
• Present Sense ImpressionStatements describing events as they occur are hearsay exceptions.
• Excited UtteranceStatements relating to startling events made under stress are admissible.
• Then-Existing State of MindStatements of then-existing mental, emotional, or physical condition are admissible.
• Statements for Medical TreatmentStatements made for medical diagnosis or treatment describing symptoms or cause are admissible.
• Recorded RecollectionWhen a witness cannot recall, a record made when fresh may be read into evidence.
• Business RecordsBusiness records made in regular course of business by someone with knowledge are admissible.
• Public RecordsPublic records of activities, observations, or investigations may be admissible with limitations.
• Absence of RecordsAbsence of a regularly kept record may prove non-occurrence of an event.
• Learned TreatisesLearned treatises may be read into evidence when established as reliable authority.
• Former TestimonyFormer testimony is admissible if the declarant is unavailable and opponent had opportunity to cross.
• Dying DeclarationsDying declarations require belief of imminent death and statements about cause or circumstances.
• Statements Against InterestStatements against penal, pecuniary, or proprietary interest admissible when declarant unavailable.
• Forfeiture by WrongdoingDefendant forfeits confrontation and hearsay objections by intentionally making declarant unavailable.
• Residual ExceptionHearsay may be admitted with guarantees of trustworthiness and notice to opposing party.

• Confrontation ClauseThe Sixth Amendment bars testimonial hearsay unless witness unavailable and prior cross occurred.
• Testimonial StatementsStatements are testimonial when primary purpose is to establish facts for prosecution.
• Non-Testimonial StatementsStatements for emergency response are typically non-testimonial.

• Privileges: Attorney–ClientAttorney–client privilege protects confidential communications for legal advice unless waived.
• Privileges: SpousalSpousal privileges include testimonial privilege and marital communications protection.
• Privileges: Psychotherapist–PatientCommunications for mental health treatment are privileged.
• Privileges: ClergyClergy–penitent communications for spiritual guidance are privileged.
• Privileges: GovernmentGovernment may assert privilege for state secrets or certain official communications.

• Judicial NoticeCourts may take judicial notice of indisputable facts from reliable sources.
• Burdens of ProofBurdens include production and persuasion; criminal cases require proof beyond reasonable doubt.
• PresumptionsPresumptions shift the burden of production unless rebutted with contrary evidence.
• Dead Man’s StatutesSome jurisdictions bar interested witnesses from testifying about communications with decedents.
• Expert Basis of OpinionExperts may rely on inadmissible facts if reasonably relied upon in the field.
• Limiting InstructionsCourts may give limiting instructions restricting evidence to a proper purpose.
• Rule of CompletenessWhen part of a writing is introduced, opposing party may require introduction of relevant remainder.