Evidence – Bar Exam – 2026 – Study Guide and Practice
Material
Relevant Evidence - correct answer ✔✔ evidence is RELEVANT if it has ANY TENDENCY to make
a material fact more probable or less probable than would be the case w/o the evidence
Relevant Evidence Rule - correct answer ✔✔ -all relevant evidence is ADMISSIBLE, UNLESS:
(a) some specific EXCLUSIONARY RULE is applicable, OR
(b) the court makes a discretionary determination that the PROBATIVE VALUE of the evidence is
substantially outweighed by one or more of the following 6 PRAGMATIC CONSIDERATIONS
6 PRAGMATIC CONSIDERATIONS for Relevance - correct answer ✔✔ 1) danger of unfair
prejudice
2) danger of confusion of issues
3) danger of misleading the jury
4) undue delay
5) waste of time
6) unduly cumulative
Similar Occurrences - General Rule - correct answer ✔✔ -if evidence concerns SOME TIME,
EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is
ADMISSIBLE.
-probative value is usually outweighed by pragmatic considerations
6 recurring situations that have produced concrete rules that may permit admissibility - correct
answer ✔✔ 1) Plaintiff's Accident History
2) Similar Accidents Caused by Same Event or Condition
,3) Intent in Issue
4) Comparable Sales on Issue of Value
5) Habit
6) Industrial Custom as Standard of Care
Plaintiff's Accident History - correct answer ✔✔ -RULE: plaintiff's accident history is
INADMISSIBLE b/c it shows nothing more than the fact that the plaintiff is accident-prone → this
is just general character evidence
-EXCEPTION → plaintiff's prior accidents are admissible IF: the cause of the plaintiff's injuries is
an issue
-EXAM TIP: always ask yourself - For what purpose is the evidence being offered?
Similar Accidents Caused by Same Event or Condition - correct answer ✔✔ -RULE: other
accidents involving defendant are inadmissible b/c they suggest nothing more than general
character for carelessness
-EXCEPTION → other accidents involving the same instrumentality or condition may be
admitted for three potential purposes IF the other accident occurred under substantially similar
circumstances:
1) to show the existence of a dangerous condition;
2) to show causation of the accident; OR
3) to show prior notice to defendant
-NOTE: substantial similarity is also the rule governing the admissibility of EXPERIMENTS and
TESTS
Intent in Issue - correct answer ✔✔ RULE: prior similar conduct of a person may be admissible
to raise an inference of the person's intent on a later occasion
Comparable Sales on Issue of Value - correct answer ✔✔ RULE: selling price of other property of
similar type, in same general location, and close in time to period at issue, is some evidence of
value of property at issue
,Habit Evidence - Rule - correct answer ✔✔ RULE: habit of a person (OR routine of a business
organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted
on the occasion at issue in the litigation
Habit Evidence - Definition - correct answer ✔✔ DEFINITION: habit is a repetitive response to a
particular set of circumstances → must be specific (if not specific enough, it may be character
evidence)
2 Defining characteristics of Habit evidence: - correct answer ✔✔ 1) FREQUENCY of the conduct
2) PARTICULARITY of the conduct
Key Words that are indicative of FREQUENCY: - correct answer ✔✔ always (or never)
invariably
automatically
instinctively
Industrial Custom as Standard of Care - correct answer ✔✔ RULE: evidence as to how others in
the same trade or industry have acted in the recent past may be admitted as evidence of how a
party in the instant litigation should have acted (as evidence of the APPROPRIATE STANDARD OF
CARE)
Relevance - Policy Based Exclusions - correct answer ✔✔ 1) liability insurance
2) Subsequent Remedial Measures
Liability Insurance - Rule - correct answer ✔✔ RULE: evidence that a person has (or does not
have) liability insurance is INADMISSIBLE for the purpose of proving FAULT or ABSENCE OF
FAULT
, Liability Insurance - Exception to the Rule - correct answer ✔✔ -evidence of insurance may be
admissible for some other relevant purpose, such as:
(a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, IF any of these issues
is disputed by the defendant; OR
(b) for the purpose of impeachment of a witness (the process of trying to show that a witness
should not be believed)
Subsequent Remedial Measures - Rule - correct answer ✔✔ -post-accident repairs, design
changes and policy changes are INADMISSIBLE for the purpose of proving NEGLIGENCE,
CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING
-NOTE: in a products liability action based on strict liability, the manufacturer's subsequent
remedial measures are inadmissible to show the existence of a defect in the product at the time
of the accident
Subsequent Remedial Measures - Policy - correct answer ✔✔ to encourage post-accident
repairs, etc., to avoid future accidents
Subsequent Remedial Measures - Exception - correct answer ✔✔ Subsequent remedial
measures may be ADMISSIBLE for some other relevant purpose, such as PROOF OF
OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION, IF either is disputed by the
defendant
Settlements of Disputed Civil Claims - Rule - correct answer ✔✔ -RULE → in the event of a
disputed civil claim, the following are INADMISSIBLE for the purpose of showing liability:
1) settlement
2) an offer to settle
3) statements of fact made during settlement discussions
-NOTE: the exclusionary rule only applies IF there is a CLAIM that is DISPUTED (at the time of
the settlement discussion) either as to VALIDITY OF THE CLAIM or AMOUNT OF DAMAGES
Material
Relevant Evidence - correct answer ✔✔ evidence is RELEVANT if it has ANY TENDENCY to make
a material fact more probable or less probable than would be the case w/o the evidence
Relevant Evidence Rule - correct answer ✔✔ -all relevant evidence is ADMISSIBLE, UNLESS:
(a) some specific EXCLUSIONARY RULE is applicable, OR
(b) the court makes a discretionary determination that the PROBATIVE VALUE of the evidence is
substantially outweighed by one or more of the following 6 PRAGMATIC CONSIDERATIONS
6 PRAGMATIC CONSIDERATIONS for Relevance - correct answer ✔✔ 1) danger of unfair
prejudice
2) danger of confusion of issues
3) danger of misleading the jury
4) undue delay
5) waste of time
6) unduly cumulative
Similar Occurrences - General Rule - correct answer ✔✔ -if evidence concerns SOME TIME,
EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is
ADMISSIBLE.
-probative value is usually outweighed by pragmatic considerations
6 recurring situations that have produced concrete rules that may permit admissibility - correct
answer ✔✔ 1) Plaintiff's Accident History
2) Similar Accidents Caused by Same Event or Condition
,3) Intent in Issue
4) Comparable Sales on Issue of Value
5) Habit
6) Industrial Custom as Standard of Care
Plaintiff's Accident History - correct answer ✔✔ -RULE: plaintiff's accident history is
INADMISSIBLE b/c it shows nothing more than the fact that the plaintiff is accident-prone → this
is just general character evidence
-EXCEPTION → plaintiff's prior accidents are admissible IF: the cause of the plaintiff's injuries is
an issue
-EXAM TIP: always ask yourself - For what purpose is the evidence being offered?
Similar Accidents Caused by Same Event or Condition - correct answer ✔✔ -RULE: other
accidents involving defendant are inadmissible b/c they suggest nothing more than general
character for carelessness
-EXCEPTION → other accidents involving the same instrumentality or condition may be
admitted for three potential purposes IF the other accident occurred under substantially similar
circumstances:
1) to show the existence of a dangerous condition;
2) to show causation of the accident; OR
3) to show prior notice to defendant
-NOTE: substantial similarity is also the rule governing the admissibility of EXPERIMENTS and
TESTS
Intent in Issue - correct answer ✔✔ RULE: prior similar conduct of a person may be admissible
to raise an inference of the person's intent on a later occasion
Comparable Sales on Issue of Value - correct answer ✔✔ RULE: selling price of other property of
similar type, in same general location, and close in time to period at issue, is some evidence of
value of property at issue
,Habit Evidence - Rule - correct answer ✔✔ RULE: habit of a person (OR routine of a business
organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted
on the occasion at issue in the litigation
Habit Evidence - Definition - correct answer ✔✔ DEFINITION: habit is a repetitive response to a
particular set of circumstances → must be specific (if not specific enough, it may be character
evidence)
2 Defining characteristics of Habit evidence: - correct answer ✔✔ 1) FREQUENCY of the conduct
2) PARTICULARITY of the conduct
Key Words that are indicative of FREQUENCY: - correct answer ✔✔ always (or never)
invariably
automatically
instinctively
Industrial Custom as Standard of Care - correct answer ✔✔ RULE: evidence as to how others in
the same trade or industry have acted in the recent past may be admitted as evidence of how a
party in the instant litigation should have acted (as evidence of the APPROPRIATE STANDARD OF
CARE)
Relevance - Policy Based Exclusions - correct answer ✔✔ 1) liability insurance
2) Subsequent Remedial Measures
Liability Insurance - Rule - correct answer ✔✔ RULE: evidence that a person has (or does not
have) liability insurance is INADMISSIBLE for the purpose of proving FAULT or ABSENCE OF
FAULT
, Liability Insurance - Exception to the Rule - correct answer ✔✔ -evidence of insurance may be
admissible for some other relevant purpose, such as:
(a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, IF any of these issues
is disputed by the defendant; OR
(b) for the purpose of impeachment of a witness (the process of trying to show that a witness
should not be believed)
Subsequent Remedial Measures - Rule - correct answer ✔✔ -post-accident repairs, design
changes and policy changes are INADMISSIBLE for the purpose of proving NEGLIGENCE,
CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING
-NOTE: in a products liability action based on strict liability, the manufacturer's subsequent
remedial measures are inadmissible to show the existence of a defect in the product at the time
of the accident
Subsequent Remedial Measures - Policy - correct answer ✔✔ to encourage post-accident
repairs, etc., to avoid future accidents
Subsequent Remedial Measures - Exception - correct answer ✔✔ Subsequent remedial
measures may be ADMISSIBLE for some other relevant purpose, such as PROOF OF
OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION, IF either is disputed by the
defendant
Settlements of Disputed Civil Claims - Rule - correct answer ✔✔ -RULE → in the event of a
disputed civil claim, the following are INADMISSIBLE for the purpose of showing liability:
1) settlement
2) an offer to settle
3) statements of fact made during settlement discussions
-NOTE: the exclusionary rule only applies IF there is a CLAIM that is DISPUTED (at the time of
the settlement discussion) either as to VALIDITY OF THE CLAIM or AMOUNT OF DAMAGES
