MBE – Evidence – 2026 – Study Guide and Practice
Questions
Which of the following is NOT addressed by Federal Rule of Evidence 403 (exclusion of relevant
evidence)?
(A) Evidence that misleads the jury.
(B) Evidence that results in unfair surprise.
(C) Needlessly cumulative evidence.
(D) Evidence that causes unnecessary delay - ANS✔✔ (B) Evidence that results in unfair
surprise.
Regarding prior inconsistent statements, which of the following is FALSE?
(A) Evidence of a prior inconsistent statement may only be admitted if it was a sworn statement.
(B) A witness may be impeached with prior inconsistent statements on cross-examination.
(C) Extrinsic evidence of the statement may be introduced if the witness is given an opportunity
to explain or deny the evidence.
(D) A hearsay declarant may be impeached by prior inconsistent statement as if the declarant
was testifying as a witness. - ANS✔✔ (A) Evidence of a prior inconsistent statement may only be
admitted if it was a sworn statement.
Which of the following statements is FALSE regarding the best evidence rule?
(A) It applies when the contents of a writing are at issue.
(B) It applies any time a party attempts to introduce a copy of a document.
(C) It applies when the document has legal effect.
,(D) It applies when a witness relies on the document while testifying. - ANS✔✔ (D) It applies
when a witness relies on the document while testifying.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The
prosecution alleged that the defendant verbally represented himself as a physician to convince
elderly individuals to sign contracts authorizing the defendant to charge their credit cards
monthly fees for deliveries of these supplements. In fact, the defendant had no medical
training. The contracts did not identify the defendant as a physician, but the prosecution
intended to introduce witness testimony that the defendant verbally represented himself as a
physician. The sole issue in dispute is whether the defendant made such representations.
At trial, the prosecution introduced a photocopy of a contract between the defendant and one
of the alleged victims in order to lay a foundation that the alleged victim bought supplements
from the defendant. The defendant did not deny that the alleged victim bought supplements
from hi - ANS✔✔ (B) Yes, because the best evidence rule is not implicated in this case.
*Note:* This fraud case concerns the defendant's verbal misrepresentations that he was a
physician, which were made to convince others to sign contracts authorizing him to charge their
credit cards. As a result, the defendant's misrepresentations—not the contents of the contract
—are at issue. And since the contract was not relied upon by a witness while testifying, the best
evidence rule was not implicated
A witness to an armed robbery identified a suspect in a proper police lineup that was not
attended by the suspect's attorney. Charges were brought against the suspect, but the witness,
a tourist from out of the country, had returned to her home country before the trial began. At
trial, the prosecutor seeks to introduce the witness's prior statement of identification into
evidence. The defendant objects to the introduction of the evidence.
Should the court allow the prior statement of identification into evidence?
(A) Yes, because it is admissible as nonhearsay.
, (B) Yes, because the witness is unavailable, so the statement of identification falls under a
hearsay exception.
(C) No, because the defendant's attorney was not present at the identification.
(D) No, because the witness is unavailable. - ANS✔✔ (D) No, because the witness is unavailable.
A defendant is acquitted of murder. Subsequently, the family members of the victim bring a
wrongful death action against the defendant. The defendant seeks to introduce a properly
authenticated, certified copy of the final judgment to show that the defendant did not
wrongfully kill the victim. The victim's family members object to the introduction of the
judgment.
May the defendant introduce the copy of the final judgment from his criminal case?
(A) No, because a judgment in a criminal case is inadmissible in a subsequent civil action.
(B) No, because the judgment is inadmissible hearsay.
(C) Yes, because the copy of the judgment satisfies the original document rule.
(D) Yes, because the level of proof in a civil action is less than that in the murder case. - ANS✔✔
(B) No, because the judgment is inadmissible hearsay.
*Note:* there is a hearsay exception for for judgments of conviction . . . BUT no such exception
exists for judgments of acquittal because innocence is technically not established—they merely
establish that the prosecution failed to meet its burden of proof.
In a criminal trial for arson, a prosecution witness testifies under oath that she saw the
defendant set fire to the victim's home. The defendant's attorney does not cross-examine the
witness but seeks to introduce testimony that the witness gave at a deposition several months
before the trial. At the deposition, the witness testified under oath that she did not see the
defendant set fire to the victim's home.
Should the court admit the deposition testimony?
Questions
Which of the following is NOT addressed by Federal Rule of Evidence 403 (exclusion of relevant
evidence)?
(A) Evidence that misleads the jury.
(B) Evidence that results in unfair surprise.
(C) Needlessly cumulative evidence.
(D) Evidence that causes unnecessary delay - ANS✔✔ (B) Evidence that results in unfair
surprise.
Regarding prior inconsistent statements, which of the following is FALSE?
(A) Evidence of a prior inconsistent statement may only be admitted if it was a sworn statement.
(B) A witness may be impeached with prior inconsistent statements on cross-examination.
(C) Extrinsic evidence of the statement may be introduced if the witness is given an opportunity
to explain or deny the evidence.
(D) A hearsay declarant may be impeached by prior inconsistent statement as if the declarant
was testifying as a witness. - ANS✔✔ (A) Evidence of a prior inconsistent statement may only be
admitted if it was a sworn statement.
Which of the following statements is FALSE regarding the best evidence rule?
(A) It applies when the contents of a writing are at issue.
(B) It applies any time a party attempts to introduce a copy of a document.
(C) It applies when the document has legal effect.
,(D) It applies when a witness relies on the document while testifying. - ANS✔✔ (D) It applies
when a witness relies on the document while testifying.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The
prosecution alleged that the defendant verbally represented himself as a physician to convince
elderly individuals to sign contracts authorizing the defendant to charge their credit cards
monthly fees for deliveries of these supplements. In fact, the defendant had no medical
training. The contracts did not identify the defendant as a physician, but the prosecution
intended to introduce witness testimony that the defendant verbally represented himself as a
physician. The sole issue in dispute is whether the defendant made such representations.
At trial, the prosecution introduced a photocopy of a contract between the defendant and one
of the alleged victims in order to lay a foundation that the alleged victim bought supplements
from the defendant. The defendant did not deny that the alleged victim bought supplements
from hi - ANS✔✔ (B) Yes, because the best evidence rule is not implicated in this case.
*Note:* This fraud case concerns the defendant's verbal misrepresentations that he was a
physician, which were made to convince others to sign contracts authorizing him to charge their
credit cards. As a result, the defendant's misrepresentations—not the contents of the contract
—are at issue. And since the contract was not relied upon by a witness while testifying, the best
evidence rule was not implicated
A witness to an armed robbery identified a suspect in a proper police lineup that was not
attended by the suspect's attorney. Charges were brought against the suspect, but the witness,
a tourist from out of the country, had returned to her home country before the trial began. At
trial, the prosecutor seeks to introduce the witness's prior statement of identification into
evidence. The defendant objects to the introduction of the evidence.
Should the court allow the prior statement of identification into evidence?
(A) Yes, because it is admissible as nonhearsay.
, (B) Yes, because the witness is unavailable, so the statement of identification falls under a
hearsay exception.
(C) No, because the defendant's attorney was not present at the identification.
(D) No, because the witness is unavailable. - ANS✔✔ (D) No, because the witness is unavailable.
A defendant is acquitted of murder. Subsequently, the family members of the victim bring a
wrongful death action against the defendant. The defendant seeks to introduce a properly
authenticated, certified copy of the final judgment to show that the defendant did not
wrongfully kill the victim. The victim's family members object to the introduction of the
judgment.
May the defendant introduce the copy of the final judgment from his criminal case?
(A) No, because a judgment in a criminal case is inadmissible in a subsequent civil action.
(B) No, because the judgment is inadmissible hearsay.
(C) Yes, because the copy of the judgment satisfies the original document rule.
(D) Yes, because the level of proof in a civil action is less than that in the murder case. - ANS✔✔
(B) No, because the judgment is inadmissible hearsay.
*Note:* there is a hearsay exception for for judgments of conviction . . . BUT no such exception
exists for judgments of acquittal because innocence is technically not established—they merely
establish that the prosecution failed to meet its burden of proof.
In a criminal trial for arson, a prosecution witness testifies under oath that she saw the
defendant set fire to the victim's home. The defendant's attorney does not cross-examine the
witness but seeks to introduce testimony that the witness gave at a deposition several months
before the trial. At the deposition, the witness testified under oath that she did not see the
defendant set fire to the victim's home.
Should the court admit the deposition testimony?
