We previously discussed how to write a passing Professional Responsibility essay. In this blog, we will provide some tips on how to attack an Evidence (Federal/California) essay on the California Bar Exam. Starting with the big picture, Evidence essays should be discussed in the following manner: 1) Form, 2) Purpose, 3) Presentation, 4) Hearsay, and 5) Privileges.
The initial inquiry is in what form is the essay question presented, in what forum, and in what sequence is the evidence being introduced in. Is there a questions of counsel in quotation marks? When we say form of the question, we mean is it a narrative fact pattern or a transcript? The bar examiners on occasion have used the transcript method, but most commonly we are dealing with a narrative fact pattern. A narrative fact pattern means that your essay needs to be over inclusive as to the issues being raised.
What is the forum of the litigation? Here we are looking to see whether the matter is in state court, federal court, and a civil or criminal matter. What is the sequence of the introduced evidence? Here we are looking to see who is introducing the evidence, plaintiff/prosecution, defense, and is it during a direct or cross examination of a witness. IF a question of counsel is in quotation marks, you need to discuss objections to form of the question, i.e., leading, narrative, speculation, etc.
The next inquiry is what is the purpose for which this evidence is being introduced for? Here you need to discuss logical/legal relevance and rule 403 balancing test. Next you need to determine whether the purpose of introducing the piece of evidence revolves around character evidence. If it does, you need to distinguish character evidence as it applies in Federal and California jurisdictions. In Civil it comes by virtue of the case, or habit evidence, and in Criminal law you are looking to see if either side opens the door for further analysis.
Next, we are looking for how the evidence is being presented. Here we are looking for issues revolving around witnesses - witness competency to testify, whether observations are made with personal knowledge, is there impeachment evidence, is there further character evidence, is it opinion/reputation evidence, specific acts, bias, motive, or simply defects in witnesses memory, perception, or knowledge? You need to be looking for any indication of inconsistent statements. Under presentation you need to see if there is documentary evidence being presented? For example, medical records, insurance records, a contract, photographs, etc. If so, you need to discuss the documents reliability and further discuss authentication and the best evidence rule. Look for opinion testimony and whether you need to discuss lay opinion or expert testimony. Look to see if any matters posed in the fact pattern could be judicially noted by the judge. Look to see which party bears the burden of proof in introduction of the evidence. Look to see if any presumptions are applicable.
Next we are looking to see if there are any hearsay issues (which 95% of the time, there will be). At this point you are writing the general rule for hearsay. Is the statement being offered for its truth? If not, it's not hearsay. i.e., verbal acts, legally operative facts, effect on hearer/reader, circumstantial evidence of state of mind, non-human declarations, etc. There are other pieces of evidence offered that are not hearsay, i.e., prior identification and prior inconsistent/consistent statements by a witness. Admissions, including vicarious admissions and co-conspirator statements are also non-hearsay.
We then look for the infamous hearsay exception. unavailability exceptions: declaration against interest, dying declarations, former testimony, etc.; reliability exceptions: excited utterance, present sense impression, state of mind, bodily conditions, etc; documentary exceptions: past recollection recorded, business records, official records, etc; and your other miscellaneous exception, such as the ancient document rule, learned treatise, and federal catch all exception which focuses on the trustworthiness of the evidence.
Lastly we are looking to see if there are any privileges that warrant discussion. Are there any privileged relationships involved? If there is, identity which type of privilege - professional or marital. Look to see who holds the privilege and whether it was ever waived. Discuss the applicable exceptions under Federal and California Law.
And there you have it. Evidence essays have a format to them and you need to write your essay in a format that is familiar to the bar grader. Use this format and checklist to write a passing Evidence essay on the California Bar Exam. For additional help on essay writing, we have former California bar exam graders who will provide you with a mock bar exam score and provide detailed feedback on improvement.
-Cal Bar Bible