Evidence MBE Questions – Multistate Bar Examination – 2026
– Practice Questions and Study Material
A woman was struck by a brick with her name scrawled on it that was thrown through her
bedroom window. The victim believes that her ex-boyfriend, who is a gang member, threw the
brick because she has become active in anti-gang groups, but she did not actually see him throw
it.
If the ex-boyfriend is arrested and put on trial for battery, which of the following items of the
victim's proposed testimony is LEAST likely to be admitted? - ANS✔✔ A. The victim recently
moved to a new apartment and only her ex-boyfriend and a few family members knew its
location.
B. The victim had testified against a member of her ex-boyfriend's gang last month in a drug
case.
C. On another occasion, the victim had seen her ex-boyfriend throw a rock through the window
of a rival street gang member.
D. Immediately after the brick went through her window, the victim heard a voice she
recognized as her ex-boyfriend's yell, "If you don't start minding your own business, you'll get a
lot worse than this next time!"
[Evidence of the defendant's other crimes or misconduct is admissible only if relevant to some
issue other than the defendant's character or propensity to commit the crime charged. Such
acts would be admissible to show motive, intent, absence of mistake, identity, or a common
plan or scheme. Of these, the only one possibly relevant to these facts is identity. Evidence that
the accused committed prior criminal acts that are so distinctive as to operate as a "signature"
may be introduced to prove that the accused committed the act in question. Merely throwing
an object, such as a brick, through a window could not be considered so distinctive as to
operate as a signature. Thus, this evidence would not show identity. The only possible reason
for offering the evidence is to show the ex-boyfriend's propensity to commit the crime charged,
in which case the testimony will be inadmissible.]
A beneficiary has filed a petition in the probate court to contest the validity of a testator's will.
The beneficiary contends that when the testator executed the will eight years before, he had a
, severe mental illness and was incapable of forming a valid testamentary intent. In support of
this contention, the beneficiary seeks to offer an affidavit prepared by the testator's former
attorney, which states that she was asked to prepare a will for the testator just four months
before this will was made. The attorney had refused to do so because it was her opinion that
the testator seemed incoherent and paranoid. How should the judge rule on the admissibility of
this affidavit? - ANS✔✔ (C)
A. Admissible.
B. Inadmissible, as being violative of the attorney-client privilege.
C. Inadmissible, because it is hearsay not within any exception.
D. Inadmissible, because it is improper opinion evidence.
[The judge should rule this affidavit to be inadmissible hearsay. This affidavit is clearly hearsay,
and there is nothing in the facts that shows that it is admissible under any of the exceptions to
this rule. Hence, (A) is wrong. (B) is wrong because the observations of the attorney would not
be deemed a "communication received from the client." Also, while the attorney-client privilege
generally survives the client's death, it does not apply to communications relevant to an issue
between parties who are claiming through the same deceased client, such as in the probate
proceedings here. (D) is incorrect because a lay person could probably testify to her opinion in
this situation since it is rationally based on her own perception, it is helpful to a determination
of a fact in issue, and it is not based on scientific, technical, or other specialized knowledge.]
A plaintiff sued a defendant for damages suffered when a load of bricks fell off the defendant's
truck directly in front of the plaintiff while she was driving on a highway. The plaintiff charged
that the defendant was negligent in supplying his truck with a defective load chain clamp, which
helped tie the load to the bed of the truck, and in failing to secure the load properly on the
truck. The plaintiff calls a witness who testifies that he was formerly employed as a truck driver
and is an acquaintance of the defendant. The witness further testifies that immediately prior to
the accident he had coffee with the defendant at a cafe, and mentioned to the defendant that
the tie chains holding the load of bricks looked kind of loose.
Assuming proper objection by the defendant's attorney, how should the court rule on the
admissibility of such testimony? - ANS✔✔ (B)
– Practice Questions and Study Material
A woman was struck by a brick with her name scrawled on it that was thrown through her
bedroom window. The victim believes that her ex-boyfriend, who is a gang member, threw the
brick because she has become active in anti-gang groups, but she did not actually see him throw
it.
If the ex-boyfriend is arrested and put on trial for battery, which of the following items of the
victim's proposed testimony is LEAST likely to be admitted? - ANS✔✔ A. The victim recently
moved to a new apartment and only her ex-boyfriend and a few family members knew its
location.
B. The victim had testified against a member of her ex-boyfriend's gang last month in a drug
case.
C. On another occasion, the victim had seen her ex-boyfriend throw a rock through the window
of a rival street gang member.
D. Immediately after the brick went through her window, the victim heard a voice she
recognized as her ex-boyfriend's yell, "If you don't start minding your own business, you'll get a
lot worse than this next time!"
[Evidence of the defendant's other crimes or misconduct is admissible only if relevant to some
issue other than the defendant's character or propensity to commit the crime charged. Such
acts would be admissible to show motive, intent, absence of mistake, identity, or a common
plan or scheme. Of these, the only one possibly relevant to these facts is identity. Evidence that
the accused committed prior criminal acts that are so distinctive as to operate as a "signature"
may be introduced to prove that the accused committed the act in question. Merely throwing
an object, such as a brick, through a window could not be considered so distinctive as to
operate as a signature. Thus, this evidence would not show identity. The only possible reason
for offering the evidence is to show the ex-boyfriend's propensity to commit the crime charged,
in which case the testimony will be inadmissible.]
A beneficiary has filed a petition in the probate court to contest the validity of a testator's will.
The beneficiary contends that when the testator executed the will eight years before, he had a
, severe mental illness and was incapable of forming a valid testamentary intent. In support of
this contention, the beneficiary seeks to offer an affidavit prepared by the testator's former
attorney, which states that she was asked to prepare a will for the testator just four months
before this will was made. The attorney had refused to do so because it was her opinion that
the testator seemed incoherent and paranoid. How should the judge rule on the admissibility of
this affidavit? - ANS✔✔ (C)
A. Admissible.
B. Inadmissible, as being violative of the attorney-client privilege.
C. Inadmissible, because it is hearsay not within any exception.
D. Inadmissible, because it is improper opinion evidence.
[The judge should rule this affidavit to be inadmissible hearsay. This affidavit is clearly hearsay,
and there is nothing in the facts that shows that it is admissible under any of the exceptions to
this rule. Hence, (A) is wrong. (B) is wrong because the observations of the attorney would not
be deemed a "communication received from the client." Also, while the attorney-client privilege
generally survives the client's death, it does not apply to communications relevant to an issue
between parties who are claiming through the same deceased client, such as in the probate
proceedings here. (D) is incorrect because a lay person could probably testify to her opinion in
this situation since it is rationally based on her own perception, it is helpful to a determination
of a fact in issue, and it is not based on scientific, technical, or other specialized knowledge.]
A plaintiff sued a defendant for damages suffered when a load of bricks fell off the defendant's
truck directly in front of the plaintiff while she was driving on a highway. The plaintiff charged
that the defendant was negligent in supplying his truck with a defective load chain clamp, which
helped tie the load to the bed of the truck, and in failing to secure the load properly on the
truck. The plaintiff calls a witness who testifies that he was formerly employed as a truck driver
and is an acquaintance of the defendant. The witness further testifies that immediately prior to
the accident he had coffee with the defendant at a cafe, and mentioned to the defendant that
the tie chains holding the load of bricks looked kind of loose.
Assuming proper objection by the defendant's attorney, how should the court rule on the
admissibility of such testimony? - ANS✔✔ (B)
