MBE Evidence Questions – Multistate Bar Examination – 2026
– Practice Questions and Exam Preparation Material
A general statement of the hearsay rule under the Federal Rules of Evidence is:
A an out-of-court statement offered in evidence to prove the truth of the matter asserted
B an out-of-court statement by someone other than the declarant to prove the truth of the
matter asserted
C an out-of-court statement by a party-opponent offered in evidence to prove the truth of the
matter asserted
D a statement offered in evidence to prove the truth of the matter asserted - correct answer
✔✔ The Federal Rules define hearsay as a statement, other than one made by the declarant
while testifying at the current trial or hearing, offered in evidence to provide the truth of the
matter asserted. However, most people remember the rule more succinctly as an out-of-court
statement offered in evidence to prove the truth of the matter asserted. The key elements are:
(i) A statement (ii) Made not while testifying at the trial (out-of-court) (iii) To prove the truth of
the matter and not some other purpose. An out-of-court statement by someone other than the
declarant is incorrect because the declarant can also be the testifying witness, in which case his
out-of-court statement can be hearsay. An statement by an opposing party (also called an
"admission by a party-opponent) is not considered to be hearsay under the Federal Rules. A
statement offered to prove the truth of the matter asserted does not include the fact that the
statement was not made while testifying at the trial. The reason for excluding hearsay is that
the adverse party was denied the opportunity to cross-examine the declarant. If the statement
was made while testifying at the trial, then there was an opportunity to cross-examine the
declarant.
Statements by a an opposing party (also known as "admissions by a party-opponent") are
considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an
opposing party's statement, it must:
A have been within the party's personal knowledge at the time
,B be attributable to a party and offered against that party
C go against that party's interest at the time it was made
D not be in the form of an opinion - correct answer ✔✔ To qualify as a "statement by an
opposing party," a party's statement must be offered against him. (In contrast, if a party
introduces his own prior statement into evidence, it may be hearsay.) Lack of personal
knowledge does not necessarily exclude an opposing party's statement. An opposing party's
statement may even be predicated on hearsay. An opposing party's statement need not have
been against the party's interest at the time it was made. An opposing party's statement may be
in the form of an opinion. The only requirement is that it concern one of the relevant facts.
Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the
declarant is unavailable; and (ii) defendant had an opportunity to cross-examine the declarant
at the time the statement was made. Which of the following is considered "nontestimonial"
evidence for purposes of the Confrontation Clause?
A Affidavits that summarize the results of a fingerprint test.
B Statements made by a robbery victim to a police officer about the details of the robbery.
C Statements made about the identity of the perpetrators during a 911 call in the course of a
home invasion.
D Statements made by a victim of a theft to a police officer about the physical features of the
suspect. - correct answer ✔✔ If the primary purpose of police interrogation is to enable the
police to help in an ongoing emergency, statements made in the course of the interrogation are
nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators
in the course of a home invasion). It has been held that affidavits that summarize the findings of
forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be
admitted into evidence unless the technician is unavailable and the defendant previously had an
opportunity to cross-examine him. (Note, however, that such affidavits do not raise a
Confrontation Clause issue when they are not offered to prove the truth of the matter asserted.)
When the primary purpose of the interrogation is to establish or prove past events potentially
relevant to a later criminal prosecution, statements are testimonial. Such statements would
include those made to the police by a robbery victim about the details of the robbery, or by a
victim of a theft regarding the physical features of the suspect.
,Certain statements by a person testifying at trial, who is thus subject to cross-examination, are
not hearsay under the Federal Rules. Which of the following would be hearsay if offered as
proof of the matter asserted?
A A witness's prior inconsistent statement made at a deposition.
B A witness's prior consistent statement offered to rebut a charge that the witness is now lying
to provide an alibi for his wife.
C A witness's prior statement identifying a person in a police lineup.
D A witness's prior inconsistent statement made to a news reporter. - correct answer ✔✔ A
witness's prior inconsistent statement made to a news reporter would be hearsay if offered to
prove the truth of the matter asserted. It is an out-of-court statement offered to prove the truth
of the matter asserted. Note that it could be used to impeach the witness's credibility, but not
as substantive proof of the matter. A witness's prior inconsistent statement made at a
deposition is not hearsay because the statement was made under oath. Prior inconsistent
statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are
not hearsay under the Federal Rules. A witness's prior consistent statement is not hearsay if
offered to rebut a charge that the witness is lying for a particular motive. This is regardless of
whether it was made under penalty of perjury. The prior statement must be made before the
alleged motive to lie came into being. So if the witness's statement was made before his wife
was a suspect, it would be admissible. A witness's prior statement identifying a person in a
lineup is not hearsay. A prior identification after perceiving a person or even after seeing his
picture in a photo identification is not hearsay under the Federal Rules.
Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious
admission (i.e., a statement attributable to the opposing party). Which of the following
relationships between a declarant and a party might be sufficient for a vicarious admission?
A Partners
B Joint tenants
C Co-parties
D Spouses - correct answer ✔✔ A principal-agent relationship, which includes every partner
with every other partner in a partnership, is a relationship that may give rise to a vicarious
, admission. Statements by an agent concerning any matter within the scope of her agency, made
during the existence of the employment relationship, are admissible against the principal.
Although in most state courts, admissions of each joint tenant are admissible against the other,
this is not true under the Federal Rules. Statements of a party are not receivable against her co-
party merely because they happen to be joined as parties to the action. (These statements may
be admissible under a hearsay exception such as a statement against interest.) A person's
statement will not be held against his spouse as a vicarious admission simply because they are
married. Of course, the spouses may have a separate relationship (e.g., partners, principal-
agent, authorized spokesperson) that may allow for vicarious admissions.
Which hearsay exception is applicable only if the declarant is unavailable to testify at trial?
A present sense impressions
B statements against interest
C excited utterances
D business records - correct answer ✔✔ Under the Federal Rules, there are two groups of
hearsay exceptions—those that require the declarant be unavailable, and those under which
the declarant's availability is immaterial. The five important exceptions requiring the declarant's
unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations,
(iv) statements of personal or family history, and (v) statements offered against party procuring
declarant's unavailability. Other hearsay exceptions (including the exceptions for present sense
impressions, excited utterances, and business records) are applicable whether or not the
declarant is unavailable.
Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness.
Which of the following is NOT a requirement of the former testimony exception to the hearsay
rule?
A The former testimony must have been given under oath or sworn affirmation.
B The subject matter in the current case and the prior case are the same.
C The parties in the current case must be the same as in the prior case.
– Practice Questions and Exam Preparation Material
A general statement of the hearsay rule under the Federal Rules of Evidence is:
A an out-of-court statement offered in evidence to prove the truth of the matter asserted
B an out-of-court statement by someone other than the declarant to prove the truth of the
matter asserted
C an out-of-court statement by a party-opponent offered in evidence to prove the truth of the
matter asserted
D a statement offered in evidence to prove the truth of the matter asserted - correct answer
✔✔ The Federal Rules define hearsay as a statement, other than one made by the declarant
while testifying at the current trial or hearing, offered in evidence to provide the truth of the
matter asserted. However, most people remember the rule more succinctly as an out-of-court
statement offered in evidence to prove the truth of the matter asserted. The key elements are:
(i) A statement (ii) Made not while testifying at the trial (out-of-court) (iii) To prove the truth of
the matter and not some other purpose. An out-of-court statement by someone other than the
declarant is incorrect because the declarant can also be the testifying witness, in which case his
out-of-court statement can be hearsay. An statement by an opposing party (also called an
"admission by a party-opponent) is not considered to be hearsay under the Federal Rules. A
statement offered to prove the truth of the matter asserted does not include the fact that the
statement was not made while testifying at the trial. The reason for excluding hearsay is that
the adverse party was denied the opportunity to cross-examine the declarant. If the statement
was made while testifying at the trial, then there was an opportunity to cross-examine the
declarant.
Statements by a an opposing party (also known as "admissions by a party-opponent") are
considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an
opposing party's statement, it must:
A have been within the party's personal knowledge at the time
,B be attributable to a party and offered against that party
C go against that party's interest at the time it was made
D not be in the form of an opinion - correct answer ✔✔ To qualify as a "statement by an
opposing party," a party's statement must be offered against him. (In contrast, if a party
introduces his own prior statement into evidence, it may be hearsay.) Lack of personal
knowledge does not necessarily exclude an opposing party's statement. An opposing party's
statement may even be predicated on hearsay. An opposing party's statement need not have
been against the party's interest at the time it was made. An opposing party's statement may be
in the form of an opinion. The only requirement is that it concern one of the relevant facts.
Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the
declarant is unavailable; and (ii) defendant had an opportunity to cross-examine the declarant
at the time the statement was made. Which of the following is considered "nontestimonial"
evidence for purposes of the Confrontation Clause?
A Affidavits that summarize the results of a fingerprint test.
B Statements made by a robbery victim to a police officer about the details of the robbery.
C Statements made about the identity of the perpetrators during a 911 call in the course of a
home invasion.
D Statements made by a victim of a theft to a police officer about the physical features of the
suspect. - correct answer ✔✔ If the primary purpose of police interrogation is to enable the
police to help in an ongoing emergency, statements made in the course of the interrogation are
nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators
in the course of a home invasion). It has been held that affidavits that summarize the findings of
forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be
admitted into evidence unless the technician is unavailable and the defendant previously had an
opportunity to cross-examine him. (Note, however, that such affidavits do not raise a
Confrontation Clause issue when they are not offered to prove the truth of the matter asserted.)
When the primary purpose of the interrogation is to establish or prove past events potentially
relevant to a later criminal prosecution, statements are testimonial. Such statements would
include those made to the police by a robbery victim about the details of the robbery, or by a
victim of a theft regarding the physical features of the suspect.
,Certain statements by a person testifying at trial, who is thus subject to cross-examination, are
not hearsay under the Federal Rules. Which of the following would be hearsay if offered as
proof of the matter asserted?
A A witness's prior inconsistent statement made at a deposition.
B A witness's prior consistent statement offered to rebut a charge that the witness is now lying
to provide an alibi for his wife.
C A witness's prior statement identifying a person in a police lineup.
D A witness's prior inconsistent statement made to a news reporter. - correct answer ✔✔ A
witness's prior inconsistent statement made to a news reporter would be hearsay if offered to
prove the truth of the matter asserted. It is an out-of-court statement offered to prove the truth
of the matter asserted. Note that it could be used to impeach the witness's credibility, but not
as substantive proof of the matter. A witness's prior inconsistent statement made at a
deposition is not hearsay because the statement was made under oath. Prior inconsistent
statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are
not hearsay under the Federal Rules. A witness's prior consistent statement is not hearsay if
offered to rebut a charge that the witness is lying for a particular motive. This is regardless of
whether it was made under penalty of perjury. The prior statement must be made before the
alleged motive to lie came into being. So if the witness's statement was made before his wife
was a suspect, it would be admissible. A witness's prior statement identifying a person in a
lineup is not hearsay. A prior identification after perceiving a person or even after seeing his
picture in a photo identification is not hearsay under the Federal Rules.
Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious
admission (i.e., a statement attributable to the opposing party). Which of the following
relationships between a declarant and a party might be sufficient for a vicarious admission?
A Partners
B Joint tenants
C Co-parties
D Spouses - correct answer ✔✔ A principal-agent relationship, which includes every partner
with every other partner in a partnership, is a relationship that may give rise to a vicarious
, admission. Statements by an agent concerning any matter within the scope of her agency, made
during the existence of the employment relationship, are admissible against the principal.
Although in most state courts, admissions of each joint tenant are admissible against the other,
this is not true under the Federal Rules. Statements of a party are not receivable against her co-
party merely because they happen to be joined as parties to the action. (These statements may
be admissible under a hearsay exception such as a statement against interest.) A person's
statement will not be held against his spouse as a vicarious admission simply because they are
married. Of course, the spouses may have a separate relationship (e.g., partners, principal-
agent, authorized spokesperson) that may allow for vicarious admissions.
Which hearsay exception is applicable only if the declarant is unavailable to testify at trial?
A present sense impressions
B statements against interest
C excited utterances
D business records - correct answer ✔✔ Under the Federal Rules, there are two groups of
hearsay exceptions—those that require the declarant be unavailable, and those under which
the declarant's availability is immaterial. The five important exceptions requiring the declarant's
unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations,
(iv) statements of personal or family history, and (v) statements offered against party procuring
declarant's unavailability. Other hearsay exceptions (including the exceptions for present sense
impressions, excited utterances, and business records) are applicable whether or not the
declarant is unavailable.
Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness.
Which of the following is NOT a requirement of the former testimony exception to the hearsay
rule?
A The former testimony must have been given under oath or sworn affirmation.
B The subject matter in the current case and the prior case are the same.
C The parties in the current case must be the same as in the prior case.
