1. hearsay: Remember that hearsay is a two-part test. Hearsay is an (1) out-of-court statement of a person (2) offered to prove the truth of the matter asserted. Examinees must examine each prong of the hearsay test and prove or disprove each element using specific facts in the question. Too many students simply reached a conclusion by simply stating that, for example, the storekeeper’s statement is hearsay because it is an out-of-court statement being offered to prove the truth of the matter asserted. Statements like this to prove the existence of hearsay doesn’t indicate to the grader that the examinee has examined the particular facts at issue or whether the examinee understands how to apply the applicable legal concepts to certain scenarios.

 

2. hearsay exceptions: Before discussing exceptions, examinees must conclude that the statement at issue is a hearsay statement (see #1). Examinees must discuss issues logically and chronologically. Examinees should be aware of this common pitfall, as it is probably much more interesting to discuss, for example, whether there is a breach of a contract before determining whether there was a valid contract; who receives what under a will before examining whether a will was validly executed; or determining a partner’s liabilities before concluding that there was, indeed, a partnership arrangement.

3. inapplicable hearsay exceptions: Even if examinees conclude that no hearsay exceptions apply to a particular hearsay statement, examinees should at least attempt to discuss one exception (preferable what could be the most applicable) and indicate why that particular exception (and all others) doesn’t apply. Examinees should make it apparent to graders that they have fully examined the issue. For instance, examinees who conclude that no applicable exceptions exist have a 50-percent chance of being correct. Graders want to know the underlying rationale why some examinees are concluding this way to ensure that other examinees simply aren’t rolling the dice and hoping that no exceptions apply.

4. authentication: Documentary evidence must typically be authenticated before it can be admissible. There are several methods to prove authentication. Examinees, however, should not neglect the fact that certain documents are self-authenticating; that is, these documents are presumed authentic, such as official publications, certified copies, and photocopies of certified copies.

5. photocopies: Photocopies are duplicates. Duplicates are considered originals. Therefore, photocopies are treated as originals.

Bonus:

6. don’t be conclusory: It’s not good enough that examinees simply conclude that a statement is hearsay or relevant. Examinees must define what hearsay and relevant statements are and then undergo an examination to determine whether the elements of hearsay or relevancy are met. For example, one student on the practice exam wrote, “The marriage certificate is relevant to prove the existence of Francine and David’s Marriage (sic).” While the student accurately concluded that the marriage certificate is relevant, the student did not previously define what relevancy is nor did the student explain what the marriage certificate, in this particular fact pattern, fit the relevancy test. In other words, the student, first, should have indicated that evidence is relevant if it has a tendency to make a material fact more probable or less probable than would be the case without the evidence. Then, the student should have logically concluded that the material fact – that Francine and David are married – can be proven by the marriage certificate.