{"id":15783,"date":"2018-10-02T06:06:46","date_gmt":"2018-10-02T11:06:46","guid":{"rendered":"http:\/\/www.kaptest.com\/blog\/bar-exam-insider\/?p=1362"},"modified":"2020-09-11T20:41:53","modified_gmt":"2020-09-11T20:41:53","slug":"evidence-practice","status":"publish","type":"post","link":"https:\/\/wpapp.kaptest.com\/study\/bar\/evidence-practice\/","title":{"rendered":"Bar Exam Tips and Practice: Evidence Question"},"content":{"rendered":"<p><div  style='padding-bottom:10px; ' class='av-special-heading av-special-heading-h3    avia-builder-el-0  el_before_av_heading  avia-builder-el-first  '><h3 class='av-special-heading-tag '  itemprop=\"headline\"  >Evidence&#8211;Hearsay Question<\/h3><div class='special-heading-border'><div class='special-heading-inner-border' ><\/div><\/div><\/div><br \/>\nA man files suit against a woman. A main issue in the case is whether the woman and\/or her nephew were in Dotsville on January 1. The plaintiff wishes to introduce into evidence a letter dated November 29 that states: &#8220;Dear Auntie, I can&#8217;t wait to see you in Dotsville for New Year&#8217;s Eve. It has been too long since we&#8217;ve seen each other. Love, Nephew.&#8221; This letter has been properly authenticated.<br \/>\nIs the letter offered by plaintiff admissible into evidence?<br \/>\n<strong>(A)<\/strong> No, because it is hearsay not within any exception.<br \/>\n<strong>(B)<\/strong> No, as irrelevant, because the plaintiff did not introduce evidence that the woman or her nephew actually went to Dotsville on January 1.<br \/>\n<strong>(C)<\/strong> Yes, as a statement by an opposing party.<br \/>\n<strong>(D)<\/strong> Yes, as a statement of intent as to the nephew, but not to his aunt.<br \/>\nTake a minute to work this practice problem. Then, before checking your answer, we&#8217;ll address a question many people may wonder during bar exam prep: should I use the released questions to prep?<br \/>\n&nbsp;<br \/>\n<div  style='padding-bottom:10px; ' class='av-special-heading av-special-heading-h3    avia-builder-el-1  el_after_av_heading  el_before_av_heading  '><h3 class='av-special-heading-tag '  itemprop=\"headline\"  >Should you use released questions for bar prep?<\/h3><div class='special-heading-border'><div class='special-heading-inner-border' ><\/div><\/div><\/div><br \/>\n<span style=\"font-weight: 400\">Certainly we can all agree that the best way to prepare for the MBE is to do lots of MBE practice questions. To that end, one would initially think that using released NCBE questions would be ideal. That is until you read the warning label on those released questions themselves.<\/span><br \/>\n<span style=\"font-weight: 400\">\u201c<\/span><span style=\"font-weight: 400\">Retired questions drawn from<\/span><span style=\"font-weight: 400\">\u00a0<\/span><span style=\"font-weight: 400\">MBEs administered many years ago are made available on this page, but examinees are advised not to use these questions as substantive preparation for the MBE. Due to changes in the law since the time the questions appeared on an exam, the questions and their keys may no longer be current. The question format may also be outdated.<\/span><span style=\"font-weight: 400\">\u00a0<\/span><span style=\"font-weight: 400\">Because these questions are outdated, NCBE does not recommend their use but nevertheless makes them available because the questions may still be in use by commercial bar review courses under a licensing agreement with NCBE.<\/span><span style=\"font-weight: 400\">\u201d<\/span><br \/>\n<span style=\"font-weight: 400\">Also challenging would be knowing why that question was released. What makes it not test-like? Why is the NCBE<\/span><span style=\"font-weight: 400\">\u2019<\/span><span style=\"font-weight: 400\">s advice specifically NOT to use it? Figuring out exactly what was wrong is more difficult than constructing a new question.<\/span><br \/>\nWhile a bar preparation company could spring up overnight with a wholesale purchase of these questions, it would leave students with a noticeable disadvantage as the NCBE points out; these questions may have issues. Additionally, who can be certain that the NCBE will continue to release questions? Being beholden to a test-maker in such fashion creates the possibility of a severe content drought.<br \/>\n<span style=\"font-weight: 400\">The main reason that Kaplan creates its own questions is simple. For three decades Kaplan has followed the exam<\/span><span style=\"font-weight: 400\">\u2019<\/span><span style=\"font-weight: 400\">s changes. Soliciting student feedback, reviewing released exams and questions, and having question writers actually sit for the exam, has provided Kaplan with its backbone of MBE preparation and content creation.<\/span><br \/>\n<span style=\"font-weight: 400\">Moreover, Kaplan<\/span><span style=\"font-weight: 400\">\u2019<\/span><span style=\"font-weight: 400\">s process of question writing mirrors that of the NCBE. A question is written, then a legal team evaluates that question checking it for legal accuracy, ensuring it\u2019s grammatically correct, and reviewing whether the wrong answers are sufficiently viable as distractor choices. It\u2019s then incubated in one of Kaplan<\/span><span style=\"font-weight: 400\">\u2019<\/span><span style=\"font-weight: 400\">s giant Quizbank containers where real time analysis is measured by having thousands of users attempt the question. With this real-time feedback, Kaplan can rate a question<\/span><span style=\"font-weight: 400\">\u2019<\/span><span style=\"font-weight: 400\">s performance, and alter it where necessary to produce an intended result. Once the testing is complete, the question can then be used in a simulated exam or an in-class exercise assuring continued accuracy that even the most strict of psychometricians would delight in. This process has allowed Kaplan to take pride in being labeled &#8220;most test-like&#8221; again and again.<\/span><br \/>\n&nbsp;<br \/>\n<div  style='padding-bottom:10px; ' class='av-special-heading av-special-heading-h3    avia-builder-el-2  el_after_av_heading  el_before_av_sidebar  '><h3 class='av-special-heading-tag '  itemprop=\"headline\"  >Explanation<\/h3><div class='special-heading-border'><div class='special-heading-inner-border' ><\/div><\/div><\/div><\/p>\n<blockquote><p><strong>The correct answer is: (D) Yes, as a statement of intent as to the nephew, but not to his aunt.<\/strong><br \/>\nPursuant to Federal Rule of Evidence 803(3), a declarant&#8217;s statement regarding his state of mind or intention is admissible to show the conduct of the declarant (but not the conduct of others) in conformity with the expressed intention. Therefore, here, the nephew&#8217;s letter is admissible to prove that he (the declarant) was in Dotsville on January 1, but not to prove that his aunt was in Dotsville on that date. As such, the trial court would issue a limiting instruction to restrict the jury&#8217;s use of the evidence against the aunt.<\/p><\/blockquote>\n<p><strong>(A)<\/strong> Incorrect. No, because it is hearsay not within any exception.<br \/>\nPursuant to Federal Rule of Evidence 803(3), a declarant&#8217;s statement regarding his state of mind or intention is admissible to show the conduct of the declarant (but not the conduct of others) in conformity with the expressed intention. Therefore, here, the nephew&#8217;s letter is admissible to prove that the nephew (the declarant) was in Dotsville on January 1. The statement will not be excluded on hearsay grounds.<br \/>\n<strong>(B)<\/strong> Incorrect. No, as irrelevant, because the plaintiff did not introduce evidence that the woman or her nephew actually went to Dotsville on January 1.<br \/>\nThe jury may infer from the nephew&#8217;s letter that he acted in conformity with his expressed intent to go to Dotsville on January 1. Thus, the letter written by the nephew is relevant circumstantial evidence.<br \/>\n<strong>(C)<\/strong> Incorrect. Yes, as a statement by an opposing party.<br \/>\nA statement by an opposing party is a party&#8217;s own statement offered against him at trial. Here, the letter in question was written by the nephew, not the aunt. As the nephew is not a party to the action, his letter does not constitute a statement by an opposing party.<br \/>\n<\/p>\n","protected":false},"excerpt":{"rendered":"<p>A man files suit against a woman. A main issue in the case is whether the woman and\/or her nephew were in Dotsville on January 1. The plaintiff wishes to introduce into evidence a letter dated November 29 that states: &#8220;Dear Auntie, I can&#8217;t wait to see you in Dotsville for New Year&#8217;s Eve. It [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":28286,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[6,8],"_links":{"self":[{"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/posts\/15783"}],"collection":[{"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/comments?post=15783"}],"version-history":[{"count":3,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/posts\/15783\/revisions"}],"predecessor-version":[{"id":35448,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/posts\/15783\/revisions\/35448"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/media\/28286"}],"wp:attachment":[{"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/media?parent=15783"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/categories?post=15783"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/wpapp.kaptest.com\/study\/wp-json\/wp\/v2\/tags?post=15783"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}