This guide focuses on library and internet resources for researching or studying evidence and the Federal Rules of Evidence for the NextGen bar exam. Secondary sources, such as evidence law texts & treatises are included. You will also find suggested print or online study aids. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Examinees should assume that the Federal Rules of Evidence (FRE) are in effect. If a particular topic’s scope is described in this outline, that does not indicate greater importance or testing frequency of the topic.
Within this outline, there are two types of topics:
Topics with a star symbol * Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
I. Relevance and reasons for excluding relevant evidence
A. Probative value
1. Relevance *
This topic includes understanding that evidence remains relevant and may be admitted even if an opposing party offers to stipulate to it. However, a court may consider an offer to stipulate when judging the evidence’s probative value.
2. Exclusion for unfair prejudice, confusion, or waste of time *
B. Character and related concepts
1. Admissibility of character evidence
2. Crimes, wrongs, or other acts *
3. Methods of proving character
4. Habit and routine practice
C. Opinions and expert testimony
1. Lay opinion *
2. Qualification of expert witness
3. Proper subject matter for expert testimony *
4. Reliability of expert testimony *
5. Bases of expert opinion testimony
6. Ultimate issue rule
II. Presentation of evidence
A. Foundation, authentication, and identification, including the best evidence rule *
This topic includes understanding that evidence needs to be authenticated and familiarity with the four primary examples set out in FRE 901(b)(1)-(4) of evidence that meets the authentication requirement. This topic also includes what it means to “prove the content” of a writing, as well as understanding how the rules define “writing” and the rules with respect to duplicates.
B. Competency of witness
C. Juror’s competency as a witness
D. Refreshing recollection
E. Objections and offers of proof
F. Judicial notice G. Limited admissibility
III. Privileges and other policy exclusions
A. Spousal immunity and marital communications
B. Attorney-client and work product *
C. Physician/psychotherapist-patient
D. Insurance coverage
E. Subsequent remedial measures
F. Compromise and payment of medical expenses
IV. Hearsay and circumstances of its admissibility
A. Definition of hearsay *
B. Statements that are not hearsay
1. Declarant-witness’s prior statement *
2. Opposing party’s statement *
C. Right to confront witnesses
This topic includes the right to confront witnesses and limitations on testimonial hearsay pursuant to the confrontation clause of the Sixth Amendment in criminal cases.
D. Hearsay within hearsay
V. Exceptions to the rule against hearsay
A. Hearsay exceptions—regardless of whether the declarant is available as a witness
1. Present sense impression and excited utterance *
2. Statement of then-existing mental, emotional, or physical condition
3. Statement made for medical diagnosis or treatment
4. Recorded recollection *
5. Business records; absence of business record *
6. Public records and reports; absence of public record This topic includes understanding that when a record or statement of a public office is offered to prove “factual findings” from a legally authorized investigation, in a civil case or against the government in a criminal case, “factual findings” include conclusions and opinions.
7. Statement in learned treatise, periodical, or pamphlet
8. Reputation concerning character
B. Hearsay exceptions—when the declarant is unavailable as a witness
1. Former testimony *
2. Statement under the belief of imminent death
3. Statement against interest *
4. Statement offered against a party that wrongfully caused the declarant’s unavailability
VI. Impeachment, contradiction, and rehabilitation
A. Ability to observe, remember, or relate accurately
B. Contradiction
C. Inconsistent statements and conduct
D. Bias and interest
E. Character for truthfulness or untruthfulness
1. Impeachment with bad acts
2. Impeachment with convictions
F. Religious belief or opinion
G. Rehabilitation of impeached witness
H. Impeachment of hearsay declarant