Evidence—MBE Attack Sequences

Attack sequence

1. Logical relevance (401)? Does the evidence have any tendency to make a fact of consequence more or less probable?
2. If not relevant Excluded. Stop.
3. Legal relevance (403) balancing Is probative value substantially outweighed by unfair prejudice, confusion, or waste of time?
4. Apply special exclusions Check subsequent remedial measures, settlement offers, plea discussions, insurance, medical payments (excluded for the disfavored purpose but may come in for another).

Key rules

• G/R: Evidence is relevant if its probative value is not substantially outweighed by the danger of unfair prejudice.
• 403 tilts toward admission: the prejudice must SUBSTANTIALLY outweigh probative value.

Attack sequence

1. Out-of-court statement? A statement not made while testifying at the current trial. A statement = a person's assertion (words or assertive conduct).
2. Identify the declarant The person who made the statement, not the witness on the stand. Ask: party? unavailable?
3. Offered for its truth? Is it offered to prove the matter asserted? If yes, it is hearsay unless exempt/excepted.
4. Non-hearsay purpose? Verbal act / legally operative words, effect on listener, state of mind, or impeachment = not hearsay.
5. Exemption (defined as non-hearsay)? Prior statement of a testifying witness, or an opposing party's statement.
6. Exception? Availability-immaterial exceptions or declarant-unavailable exceptions.
7. Confrontation Clause overlay If criminal and the statement is testimonial, it is barred unless the declarant is unavailable and D had a prior chance to cross.

Attack sequence

1. Is the declarant a testifying witness subject to cross? If yes, check the prior-statement exemptions.
2. Prior inconsistent statement Non-hearsay only if given under oath at a prior proceeding or deposition.
3. Prior consistent statement To rebut a charge of recent fabrication/improper motive, or to rehabilitate.
4. Prior statement of identification Of a person the witness perceived earlier.
5. Opposing-party statement Any statement of a party offered against that party.
6. Vicarious/authorized/co-conspirator Agent within scope, authorized speaker, or co-conspirator during and in furtherance.

Key rules

• Prior inconsistent statement is substantive evidence only if made under penalty of perjury at a trial, hearing, or deposition; otherwise impeachment only.
• Opposing-party statement need not be against interest when made; it just must be the party's own (or attributable) statement.

Attack sequence

1. Does availability matter? Split analysis: availability-immaterial vs declarant-must-be-unavailable.
2. Availability immaterial Present sense impression, excited utterance, then-existing state of mind, statement for medical diagnosis/treatment, recorded recollection, business records, public records.
3. Declarant unavailable required Former testimony (prior opportunity to cross), dying declaration (homicide or civil, belief death imminent), statement against interest, statement of personal/family history.
4. Then run Confrontation Clause If criminal + testimonial, apply the primary-purpose test.

Attack sequence

1. Criminal case? The Clause applies only against a criminal defendant.
2. Hearsay offered against the accused? Must be an out-of-court statement used against D.
3. Testimonial? (primary-purpose test) Primary purpose to establish past facts for later prosecution = testimonial; to meet an ongoing emergency = non-testimonial.
4. Prior opportunity to cross + unavailable? Testimonial statements are barred unless the declarant is unavailable and D had a prior chance to cross-examine.
5. Forfeiture If D wrongfully caused the declarant's unavailability, the objection is forfeited.

Attack sequence

1. Purpose = propensity? Character to show action in conformity is generally barred.
2. Criminal case exceptions D may open the door with reputation/opinion of a pertinent trait; prosecution rebuts. D may attack victim's trait; prosecution rebuts with victim's trait and D's same trait.
3. Non-propensity purpose (MIMIC) Motive, intent, absence of mistake, identity, common plan, knowledge, opportunity, preparation = admissible.
4. Character an essential element When character itself is an element (e.g. defamation, negligent entrustment), specific acts are allowed.
5. Habit Automatic, invariable response to a specific situation is always admissible.
6. Form of proof (405) Reputation or opinion generally; specific acts only on cross or when character is an essential element.

Attack sequence

1. Pick the method Bias, prior inconsistent statement, character for truthfulness, criminal conviction, contradiction, sensory/mental defect.
2. Character for truthfulness Reputation or opinion evidence; specific acts probative of untruthfulness only on cross, no extrinsic proof.
3. Criminal convictions Crimes of dishonesty (false statement): always admitted, no balancing. Other felonies: 403 balancing (reverse balancing if witness is the accused).
4. Ten-year rule If more than 10 years since conviction or release, admissible only if probative value substantially outweighs prejudice.
5. Prior inconsistent statement Extrinsic evidence allowed if the witness gets a chance to explain, unless collateral.
6. Collateral-matter bar No extrinsic evidence to contradict on a purely collateral point.

Attack sequence

1. Spousal testimonial privilege Criminal only; witness-spouse holds it; covers testimony about anything; ends at divorce.
2. Confidential marital communications Civil or criminal; both spouses hold it; covers confidential communications made during marriage; survives divorce.
3. Authentication Proponent must offer evidence sufficient to support a finding the item is what it is claimed to be.
4. Best evidence rule To prove the contents of a writing/recording/photo, produce the original unless lost, destroyed, or unobtainable; a duplicate is admissible absent a genuine authenticity question.

Key rules

• Testimonial privilege: witness-spouse decides; only in criminal cases; marriage must exist at time of testimony.
• Communications privilege: either spouse can block; only confidential communications during a valid marriage; survives the marriage.