Impeachment of a Hearsay Declarant

I've written on here about impeachment, and I've written about hearsay. A sort of hybrid issue can appear on the test in which a question arises as to whether a hearsay declarant can be impeached. 

In other words, when a statement that would otherwise be inadmissible hearsay is admitted because of an exemption or an exception, the person who made that statement functions as a sort of witness in the case. Even though the hearsay declarant isn't present at the trial, the jury will now consider the statement just as if the person had made the statement while testifying. 

As such, it only makes sense that the credibility of that hearsay declarant may be attacked, and attacking the credibility of any witness is the crux of impeachment. Any method for impeaching any witness will apply to impeaching a hearsay declarant. Though there is an important distinction to keep in mind. 

You might recall that one method to impeach a witness (including a hearsay declarant) is by a prior inconsistent statement. Generally, an essential component of the foundation for offering a prior inconsistent statement to impeach a witness is to give that witness an opportunity to explain or deny the prior inconsistent statement. This foundational requirement can be modified under circumstances where justice requires, though that would very much be the exception rather than the rule. 

But that requirement does not apply when impeaching a hearsay declarant on a prior inconsistent statement. The hearsay declarant need not be given an opportunity to explain or deny the prior inconsistent statement. 

So, the two takeaways here are that hearsay declarants should be treated, for the most part, as any witness is treated. Since the jury will consider their statements, it is the right of an adverse party to call into question the credibility of those statements. But if the method of impeaching a hearsay declarant is to show a prior inconsistent statement (inconsistent with the statement admitted as a hearsay exception or exemption) the safeguard of allowing the witness to explain or deny the prior inconsistent statement does not apply.

MBE Tip: Res Ipsa Loquitur

It’s important to remember that res ipsa loquitur plays a very specific role in any negligence question. It prevents the plaintiff from losing on a directed verdict, summary judgment, or etc., even though the plaintiff cannot present direct evidence of negligence. It’s, essentially, an inference that a duty was breached. That’s a simplified way to think about it.

It’s not, however, a win for the plaintiff even if “the thing speaks for itself.” There are multiple elements involved in proving negligence, and res ipsa loquitur satisfies a subset of them. Still need causation, still need damages. Answer choices will try to bait you with this common mistake.

Sanctions Related to Pretrial Conferences

Sanctions can appear within a variety of topics within Civil Procedure on the MBE. One such topic deals specifically with the availability of sanctions against those who do not follow the guidelines for pretrial conferences. 

Let's begin with some generalities and then work towards the specifics. A federal district court may order the attorneys or any unrepresented parties to attend one or more pretrial conferences. On motion or on its own, a court may order sanctions if a party or an attorney fails to appear at a scheduling conference or other pretrial conference. Sanctions might also be ordered if a party or its attorney is substantially unprepared to participate or does not participate in good faith in the conference. Lastly, a failure to obey a scheduling or other pretrial order may lead to sanctions. 

There are a number of available sanctions, and the following are some common sanctions to keep in mind: dismissal of the action in whole or in part; striking the pleadings in whole or in part; holding in contempt of court; issuing a default judgment; prohibiting use of evidence; and staying further proceedings. 

A sanction sometimes tested which can be imposed in addition to any other sanction is the imposition of fees. Specifically, if a party is sanctioned related to a pretrial conference, the court must order the party, its attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred because of any noncompliance. This is a mandatory rule unless the noncompliance was substantially justified, or if other circumstances make such an award unjust. A court's order of sanctions is reviewable under an abuse of discretion standard. 

MBE Tip: Intent for Intentional Torts

MBE Tip:

The intent required for an intentional tort? The intent to commit the tort. The intent to do the act that ultimately results in the tort. So, when the person not only subjectively believes he owns property but reasonably (objectively) believes that, you might think it can't be trespass. "Trespass is an intentional tort and the person didn't intend to trespass!" Hold that thought. The person intended to put one foot in front of the other foot to walk on the property that the person thought was his property. He intended to do the act that resulted in him ending up on property owned by another person. Assuming no defenses, it's trespass. Apply this to all the intentional torts. Didn't intend to take someone's coat because it was the same exact coat he owned? Might still be conversion or trespass to chattels, since he intended to reach out his arm and take that coat. As as aside, the coat example would not be larceny, and it's worth considering why such things are treated differently.

MBE Tip: Harm ≠ Fault ≠ Liability

In Torts questions, you've got to find the fault. 

The young child is hit by a car and is now paralyzed. Any fault on the part of the driver of the car? The senior citizen somehow succumbs to a horrible fate. Any fault? (Other than possibly by the plaintiff). The person who has a heart attack while driving and kills another driver. Was that person driving safely prior to the heart attack? Any prior heart attacks that might have made it reasonable to avoid driving? Any fault?

There's only one area in Torts that does not require fault: strict liability. And unless the question is asking about a lion (or other wild animal), a dangerously defective product, or an abnormally dangerous activity, you've got to find the fault before finding liability.

MBE Tip: Use Lifelines

Don't ever be afraid to use "lifelines" on the MBE. If that's now an outdated reference, there was a show called "Who Wants to Be a Millionaire," where contestants were able to use a variety of methods to bypass questions that they didn't want to answer.

You can't phone a friend (unless you'd like to get the most evil eye you can imagine from a proctor) and you can't (unfortunately) have 2 of the 4 answers automatically eliminated from contention. But you absolutely can skip a question that you don't want to deal with, mark an answer in case there isn't time to come back to it, but plan to return to it once you've answered all the questions you want to answer. Not only that, but this test allows for that strategy more than any other test I've ever taught. You're not trying to score a 170+ on this test: the goal is to pass. And when the goal is to pass, there's plenty cushion to pick and choose your preferred questions (within reason, of course!)

Impeachment by Conviction of a Crime vs. Impeachment by a Bad Act

There are some similarities between impeaching someone by conviction of a crime and impeaching someone by a "bad act." In both, as in all types of impeachment, the goal is to call into question the credibility of a witness. This post will focus on the differences. 

A witness may be impeached by proof of a conviction of a crime; even if that conviction is pending appeal, it may still be allowable for impeachment purposes. But not all crimes are created equal. A straight-forward, general, rule is that any crime involving dishonesty or false statements will suffice for impeachment purposes. The court has no discretion to bar impeachment for these crimes. 

If a crime does not involve dishonesty, the rules change. Although a witness may be impeached by a felony that does not involve dishonesty, the court does have the discretion to disallow it. The court will balance the benefit and burdens of allowing impeachment, and will weigh more heavily towards not allowing it if the witness is a criminal defendant. A misdemeanor that does not involve dishonesty is simply not allowable for impeachment purposes. 

Generally, for all rules above, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later) the conviction is inadmissible for impeachment. I wouldn't, however, think of this as a bright-line rule. The court may admit an older conviction if its probative value substantially outweighs its prejudicial effect, and if the proponent gives the adverse party reasonable written notice of the intent to use it. That's a tough test to overcome, however, so mostly, these older crimes will not be allowable for impeachment. 

Worth noting, especially as a contrast to impeachment by a bad act, that extrinsic evidence is allowable here to prove the conviction. That's to say that this form of impeachment is not limited to cross examination of the witness. 

A question may appear testing how a pardon affects the above rules. A conviction cannot be used to impeach a witness if the conviction was subject to a pardon if the pardon was based on rehabilitation and if the witness has not been convicted of a subsequent felony. Likewise, it cannot be used if the pardon was based on innocence. 

Juvenile offenses are generally not admissible for impeachment. In a criminal case, however, a judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused's guilt or innocence. I don't see this rule tested often, but the test writers do sometimes pitch some curveballs. ⚾️

Next up is impeachment by prior bad acts. Key here is to realize that these are acts that do not amount to crimes but still might be relevant to the credibility of a witness. A witness may be impeached on cross examination with respect to an act of misconduct if the act is probative of truthfulness. The cross examiner must have a good faith belief that the witness committed the misconduct. 

Importantly, extrinsic evidence of such misconduct is not permitted. Stated otherwise, this type of impeachment is only allowable on cross examination. It's also important to understand that asking a witness about having been arrested for misconduct is not allowable, since an arrest does not itself amount to misconduct. Only the acts bearing on the misconduct can be inquired upon.

Analyze vs. Advocate

On a bar exam essay, be the legal analyst that Fox News or MSNBC, or Choose Your Favorite News Channel, brings on the show to explain to the viewers what both sides of the legal issue are likely to argue. You're the analyst, the graders are the viewers at home watching.

"The store is likely to claim that it wasn't false imprisonment because it acted reasonably in detaining for a short period of time, etc., etc." But the customer will respond that although the store had the right to ask the customer to return the merchandise, it did not have the right to etc., etc." To that, the store might respond that..." Eventually you'll come to the conclusion of the IRAC and that's a good place to give your opinion or to advocate for one side. But don't be so definite in that conclusion/opinion unless certainty is absolutely warranted. 

I should note that this is just the view of one person (me) who has read many bar exam essays and has developed a philosophy based on feedback I've seen given from graders. Still, it's an opinion, and opinions may vary. I can only give mine!

MBE Tip: Conspiracy

Careful before picking the answer that claims someone withdrew from a conspiracy.

x and y agree to rob a bank, and they then go to the store with their bank robbery shopping list and purchase all that they need to rob a bank. x finds god and decides to not to take part in the crime. he doesn’t show up at the agreed upon robbery time: x did not withdraw from the crime of conspiracy. x finds god and tells y about his new crimeless, god-filled life and that he will take no part in the bank robbery: x did not withdraw from the crime of conspiracy. x finds god, tells y about his new crimeless, god-filled life and calls the police so that he prevents the bank robbery since the cops are waiting for y at the bank: x did not withdraw from the conspiracy. That last example is tricky. Be sure to distinguish withdrawing from the conspiracy (crime 1) with withdrawing from the bank robbery (crime 2). There’s a strong argument for withdrawal from crime 2. But once that agreement and act take place, crime 1 is complete. And there’s no withdrawing from a completed crime.

Some state laws, and even the model penal code, could change the analysis above. But, by default, unless told otherwise, the common law applies.

LSAT Tip: The Word "Unless."

The word “unless” doesn’t guarantee a thing.

“You can’t ride this ride unless you’re x feet tall” does not mean that if you’re x feet tall you can ride the ride. “You won’t see a drop in your blood pressure unless you limit your sodium intake” doesn’t mean that if you limit your sodium intake you’ll see that drop in blood pressure. “You can’t go on the school trip unless you hand in the permission slip” doesn’t mean you can go on the trip if you hand in the slip. “Unless” sets up a requirement. No slip, no trip. No decrease in sodium, no reduction in blood pressure. The word “unless” provides enough information to draw a conclusion if the condition is not satisfied. It tells you nothing at all about anything if the condition is satisfied. I think a reason why the LSAT is challenging is because logic doesn’t exactly line up with the way words are used in everyday life. If you’re told that you can’t go on the trip unless you hand in a permission slip, you’d be reasonable to conclude you can go on the trip once it’s handed in. Careful. The LSAT is waiting for you to make that mistake.

Bar Exam Writing Tip

It's important to remember that even when given a client to represent, often at the end of an essay prompt, there's no clients paying you to represent them. Unfortunately, since that would be nice.

You don't have to get into advocate mode, or competitive mode, or whatever mode is necessary to help your client to win. In fact, giving you a client to represent is often a trap by the test writers to see if you'll neglect arguments that weaken your side simply because you'd like to convince the reader that your "client" should win. Try to avoid those tempting instincts. Regardless of the side they give you, wear both hats. If an argument helps your "client," great. You don't need be wishy washy with conclusions that are warranted by the facts. But very often, explaining the strong arguments that the other side will have, and the weaknesses of your own side, will earn you as many points as advocating for the side you've been given. The number of points lost on essays by trying to hide potential winning arguments by the opposing side simply because people think the task is to advocate as strongly as possible for the side they've been given leads to many people not scoring as high on essays as they are capable of scoring!

MBE Tip: Process of Elimination

The test writers might not give you a perfectly correct answer because they aren’t obligated to do that. Rather, their obligation is to give you an answer that is less wrong than any of the others. Stated otherwise, and the way they state it: a “best” answer.

They are, however, obligated to give you wrong answers that are not arguably the best answer. They have to have a specific reason for why any given answer isn’t as good as the answer they are claiming is best. All that in mind, as you read each answer, try to find what’s wrong with it. What’s the thing in that answer that the test writers would point to if they had to support why it’s not best. When you’ve done that with 3 of the answers, you’ve, by elimination, determined the best of the four. 

 

Risk of Loss (Carrier Cases and Noncarrier Cases)

Risk of loss is an issue that, if it shows up, will show up in Contracts questions involving the sale of goods.  The delivery terms of a contract are important because they determine when the risk of loss passes from the seller to the buyer if the goods are damaged or destroyed.

Before highlighting the specific rules involving risk of loss, it's important to understand a few general principles. If the seller ships defective goods to the buyer, the risk of loss will remain on the seller until the defects are cured or until the buyer accepts the goods in spite of the defects. Similarly, if the buyer accepts goods from the seller but then rightfully revokes that acceptance, the risk of loss is treated as having remained with the seller to the extent of any deficiencies in the buyer's insurance coverage. 

Along with those general principles, there are some specific rules to know well, and these rules are dependent upon whether or not the contract calls for a carrier to deliver the goods. A noncarrier case is a sale in which the parties did not intend that the goods would be moved by a carrier. An example would be a situation in which the buyer has the obligation to pick up the goods at the seller's place of business. 

In such cases, if the seller is a merchant, risk of loss passes to the buyer only when the buyer takes physical possession of the goods. If the seller is not a merchant, risk of loss passes to the buyer upon tender of delivery (generally, the seller holding the goods for the buyer and notifying the buyer that the buyer can take possession). 

Carrier cases (contracts in which goods are to be shipped by a carrier) are further subdivided into shipment contracts and destination contracts. A shipment contract requires the seller to ship the goods by a carrier but does not require the seller to deliver the goods at a particular destination. The risk of loss in shipment contracts passes to the buyer when the goods are delivered to the carrier. The seller must, however, make a reasonable contract with the carrier to deliver the goods to the carrier, notify the buyer of the shipment, and provide the buyer with any documents necessary to receive the goods. 

Destination contracts, in contrast, do require the seller to deliver the goods at a particular destination. The risk of loss passes to the buyer only once the goods are delivered at that destination. 

With certain contracts, the buyer takes the goods for the purpose of re-selling them but also reserves the right to return them if not re-sold. The rules as sated apply, and if the buyer does return the goods, the risk of loss remains on the buyer until the goods have been returned to the seller. In other contracts, the buyer takes goods but reserves the right to return them even if they conform to the contracts. Here, risk of loss does not pass to the buyer until the buyer accepts the goods. 

An additional point to consider is whether obligations to perform are affected by loss of the goods. We know from the above that in a destination contract, the risk of loss passes to the buyer only upon delivery of the goods at the stated destination. And so, assume the goods are destroyed (through no fault of either party) in a destination contract while en route to the buyer. We know that the risk of loss has not passed to the buyer (so the buyer need not pay for the goods), but is the seller excused from having to ship new goods to to the buyer? Said otherwise, is seller's performance excused, since the seller was not at fault?

This will depend on whether the goods were identified when the contract were made. If the goods were identified when the contract was made, the contract is avoided (seller's performance is excused). If the goods were not identified until after the contract was made, the seller would need a defense (for example, impracticability) to avoid having to perform. 

MBE Tip: Dismissing Indictments

"Grant the motion to dismiss the indictment" is going to be a wrong answer in Crim Pro question. The police are going to do some very shady things. Even more shady than other questions (and they do some shady things in other questions), because the test writers want you to think the motion should be granted.

Don't grant it. Rather, the motion you should be considering is the later motion to suppress evidence at trial.

Results Are All In

The 3 lowest pass rates on the February '26 Bar Exam:
New Hampshire (36 test takers): 25%
New Jersey (405 test takers): 30%
Wyoming (20 test takers): 30%

The 3 highest pass rates on the February '26 Bar Exam: 

Mississippi (66 test takers): 73%  

Utah (75 test takers): 69%  

South Carolina (179 test takers): 66%