How to Prioritize MBE Areas Without Time (Part 2)

In Part 1 of this series, we examined Civil Procedure and Constitutional Law and identified the areas that the NCBE tests most heavily.

Now, we turn our attention to Evidence and Torts.

The goal remains the same. We are not trying to identify every rule that could possibly appear on the exam. Instead, we are looking at the NCBE’s published subject matter outline to understand where questions are concentrated and how that information can help guide your study decisions when you are short on time.

As you’ll see, the NCBE provides some surprisingly useful clues. In Evidence, approximately 83% of questions come from just three categories. In Torts, a single category—Negligence—accounts for approximately one-half of the entire subject.

Let’s take a closer look at what that means.

Evidence

What the NCBE Says

The NCBE’s official subject matter outline reveals something important: the 25 scored Evidence questions are heavily concentrated in just three categories.

According to the NCBE, approximately one-third of all Evidence questions come from Relevancy and Reasons for Excluding Relevant Evidence. Another one-quarter come from Presentation of Evidence, and one-quarter come from Hearsay and Circumstances of Its Admissibility.

Combined, these three categories account for approximately 83% of all Evidence questions. The remaining questions are drawn from Privileges and Other Policy Exclusions and Writings, Recordings, and Photographs.

What the NCBE Means by These Categories

To prioritize effectively, aim to understand what the NCBE places inside these three heavily tested categories.

• Relevancy and Reasons for Excluding Relevant Evidence: This category includes areas such as relevance, Rule 403 balancing, authentication, character evidence, habit and routine practice, prior bad acts, expert testimony, and real or demonstrative evidence.
• Hearsay and Circumstances of Its Admissibility: This category covers areas such as the definition of hearsay, statements by party-opponents, prior witness statements, multiple hearsay, common hearsay exceptions, business and public records, former testimony, statements against interest, present sense impressions, and Confrontation Clause issues.
• Presentation of Evidence: This category focuses on the mechanics of trial evidence, including witness competency, personal knowledge, refreshing recollection, judicial notice, presumptions, examination of witnesses, and impeachment and rehabilitation of witnesses.

What This Means for You

If you’re running out of time, do not treat every Evidence topic equally.

Your first priority should be Relevancy and Reasons for Excluding Relevant Evidence. This category alone accounts for approximately one-third of all Evidence questions, making it the largest category in the subject.

The next two categories—Presentation of Evidence and Hearsay and Circumstances of Its Admissibility—each account for approximately one-quarter of all Evidence questions.

If you’re deciding where to focus next, consider which category is more likely to click for you. Some people find hearsay easier because it follows a structured framework: Is it hearsay? Is it non-hearsay? Does an exemption or exception apply? Others find witness impeachment, personal knowledge, and trial procedures more intuitive because they mirror the mechanics of a courtroom.

The takeaway is simple: use the NCBE’s weighting information as a guide, not a mandate. While heavily tested categories often deserve additional attention, your remaining study time may be better spent in the areas where you can make meaningful progress most quickly.

The High-Yield Intel 

Relevance and Rule 403 

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. 

But relevant evidence is not automatically admissible. After determining relevance, ask whether the evidence should still be excluded.

First, relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly cumulative evidence.

Second, certain relevant evidence may be excluded for public policy reasons, including subsequent remedial measures, settlement offers, plea negotiations, liability insurance, and offers to pay medical expenses. These rules often test whether evidence is being offered for a prohibited purpose or for some other permissible reason.

On the MBE, do not stop at “is it relevant?” 

The better question is: is it relevant, and is there a reason to exclude it anyway?

Settlement Offers and Liability Insurance 

This often appears on the MBE as a fact pattern involving a dispute that requires some sort of compromise between the parties. Evidence of settlement offers and statements made during settlement negotiations is generally inadmissible. The rule exists to encourage parties to explore settlement without fear that their statements will later be used against them in court.

One important detail is whether a dispute actually existed at the time the statement was made. If there was no dispute regarding liability or the amount of the claim, the statement may be admissible.

What about liability insurance? It depends on why the evidence is being offered. Liability insurance is generally inadmissible to prove negligence, fault, or other wrongful conduct. However, it may be admissible for another purpose, such as proving ownership, control, agency, or witness bias.

On the MBE, don’t stop once you determine that evidence is relevant. Ask whether a public policy exclusion applies and whether the evidence is being offered for a different reason than the one the rule prohibits.

Hearsay

Before diving into all the various hearsay types, train yourself to run every single hearsay question through the exact same four-step sequence:

1. Is there a statement? (An oral assertion, written assertion, or nonverbal conduct intended as an assertion).
2. Was it made outside the current courtroom? (An out-of-court statement).
3. Is it being offered to prove the truth of what it asserts? (If it’s offered for another purpose—such as its effect on the listener, the speaker’s knowledge, or the declarant’s state of mind—the hearsay analysis stops immediately because it is not hearsay).
4. Does an exemption or exception apply?

Some MBE questions are solved simply by catching a statement that isn’t even being offered for its truth, saving you from wasting time hunting for an exception. 

Common MBE Traps 

Prior witness statements can create problems for examinees who remember only part of the rule. Pay special attention to prior inconsistent statements made under oath because they may be admissible both for impeachment and for their truth. 

Habit evidence is another area where examinees sometimes confuse two different concepts. The key question is whether the conduct reflects a specific, repeated response to a particular situation. Evidence that someone always follows the same routine may qualify as habit evidence, while evidence that a person is generally careful, reckless, honest, or dishonest is usually character evidence.

Statements made by a party-opponent are also easy to confuse with statements against interest. When a party’s own statement is offered against that party, it does not need to have been against the speaker’s interest when it was made, and it does not require the speaker to be unavailable. Many examinees begin analyzing the statement-against-interest exception when the opposing party’s statement exemption applies.

Pro Tip: For additional Evidence practice, review NCBE Sample MBE questions 2 and 19. Pay attention to the testing patterns and the specific evidentiary rule being tested before checking the answer explanation.