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.

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.

Past Recollection Recorded vs Refreshing Recollection

There are some concepts on the bar exam that are so similar that students tend to confuse one for the other. The concepts of refreshing recollection (sometimes referred to as present recollection revived) and past recollection recorded would make that list. Although they have some similarities, it's far more likely that the differences will be tested.

Refreshing Recollection:

Witnesses may use any writing or object for the purpose of refreshing their recollection in order to testify. To avoid hearsay obstacles, witnesses generally may not read from the writing while testifying. By not reading from the writing while testifying, they are not introducing the writing into evidence, and that avoids the potential hearsay problem. 

Whenever a witness has used a writing to refresh his/her memory while the witness is testifying, an adverse party is entitled to have the writing produced at trial, cross examine the witness about the writing, and introduce portions of the writing relating to the witness's testimony into evidence. If, instead, the witness refreshed his/her memory at some time other than while testifying, an adverse party is entitled to the above only if the court allows it. That's to say, these safeguards are mandatory if the memory is refreshed while testifying; if not, they are discretionary. 

In a criminal case, if the prosecution fails to produce or deliver a writing that the prosecution used to refresh a witness's recollection, the judge must strike the witness's testimony. A mistrial might also be appropriate, at the discretion of the judge. 

Past Recollection Recorded: 

There will be instances when witnesses state that they have insufficient recollection of an event to testify truthfully about that event even after they have consulted a record in an attempt to remember the details. In these instances, the record itself may be offered into evidence, but now we've also got a hearsay issue since the record is an out of court statement and it's offered for the truth of the matter asserted (the content of the record). 

The hearsay problem is avoided (that's to say, there's an exception), provided a proper foundation is laid. The foundation must include all of the following:

~ The witness has insufficient recollection to testify fully and accurately even after consulting the record. 

~ The witness had personal knowledge of the facts in the record when the record was made. 

~ The record was made by the witness, under the witness's direction, or adopted by the witness. 

~ The record was made when the matter was fresh in the witness's mind. 

~ The record accurately reflects the witness's knowledge. 

When a proper foundation is laid, the record may be read into evidence and heard by the jury. The record may not, however, be admitted into evidence as an exhibit unless offered by the adverse party. 

Evidence Tip

When answering Evidence questions:

What evidence was offered?

Why was the evidence offered?

By the above, what I mean is that although some evidence is always admissible or always inadmissible, mostly the same evidence will be admissible for some purposes, and inadmissible for others.

A statement might be admissible to impeach but not to prove the truth of the matter asserted. A person’s predilections might be admissible to prove motive but not to prove character. The fact that someone fixed something after another was injured by that thing might be offered to prove ownership of the thing, but not to prove negligence.

Etc., etc., etc.

If you’re not asking “why,” you’re missing the ball on this subject. You’ll get some questions right, regardless, but the traps that the NCBE has set will ultimately get the best of you

Public Policy Exclusions in Evidence Law

Certain types of evidence that would otherwise be admissible are excluded for reasons of public policy. What makes this area tricky is that evidence even if excluded for public policy considerations might be admissible for other reasons. In other words, this evidence is not irrelevant. It's relevant but excluded for specific purposes. So, it's important to understand not just what evidence is offered, but why the evidence is offered. Keep that in mind for other aspects of Evidence as well. 

One public policy consideration concerns liability insurance. Evidence of a party's insurance against liability (or no insurance against liability) is not admissible if the purpose of offering the evidence is to show whether the party acted negligently. It is, however, admissible to prove ownership or control, or to impeach a witness (often for bias). 

It's also admissible as part of an admission of liability. In other words, if in the same statement someone admits liability while also affirming insurance coverage, the affirmation of insurance is admissible.

Another public policy involves subsequent remedial measures. Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning. It is admissible to prove ownership/control, or to rebut a claim that a precaution was not feasible. It's also admissible to prove that the opposing party has destroyed evidence. 

The next public policy consideration involves civil settlements and settlement negotiations. Evidence of a settlement or an offer to compromise a civil claim is not admissible in any case to prove or to disprove the validity or amount of the disputed claim. Likewise, this type of evidence is not admissible to impeach a witness by prior inconsistent statements or by contradiction. It is, however, admissible to impeach a witness for bias.

Not only is the evidence of a settlement or offer to compromise inadmissible for these purposes, but any statements made in the course of negotiation or in the course of settling are also inadmissible for these purposes. For this public policy exclusion to apply, there must either be a claim or some indication that a party was going to make a claim. The claim also must have been in dispute as to either liability or to amount. 

The next public policy exclusion involves plea discussions. The following are all inadmissible in any criminal or civil case against the defendant who made the plea or participated in plea discussions: offers to plead guilty; withdrawn guilty pleas (make sure the guilty plea was withdrawn before applying this exclusion); pleas of no contest; and statements of fact made during any of the previously mentioned pleas. 

Last up is the public policy exclusion for payment of and offers to pay medical expenses. Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. Here, though, statements made in connection with these payments are admissible. This is a distinction to note: with the settlement negotiations connected statements are inadmissible, but with payments of medical expenses only the statements about having paid or having offered to pay such expenses are excluded. 

Sometimes an offer to pay a medical expense might be embedded within a larger settlement offer; in that case apply the more restrictive exclusion rule for offers to settle so that connected statements to the offer are also inadmissible. 

A Quick Distinction

~Not Hearsay: the statement is not offered for the truth of the matter asserted. It falls outside the rule against hearsay, and it’s admissible.

~Non Hearsay: the statement is offered for the truth of the matter asserted, but is excluded or exempted from the rule against hearsay, and is admissible. ~Hearsay But An Exception: the statement is offered for the truth of the matter asserted. It’s not excluded or exempted from the rule against hearsay, but is admissible even though it’s hearsay.

An Approach to Analyzing Hearsay

An approach you can apply to every hearsay question on the MBE:

1: Is the witness testifying to a statement that was made out of court.

No? Then it's not hearsay.

Yes? Then move on to the next step.

2: Is the out of court statement being offered for the truth of the matter asserted?

No? Then it's not hearsay.

Yes? Then move on to the next step.

3: Is the statement exempted from the rule against hearsay?

Yes? Then it's an admissible non-hearsay exemption.

No? Then move on to the next step.

4: Do any of the hearsay exceptions apply to the statement?

No? Then it's inadmissible hearsay.

Yes? Then it's hearsay, but it's admissible.

*That final point is worth reiterating. When you have an exception to the hearsay rule, that doesn't make the statement not hearsay or non hearsay. Rather, it's more accurate to say that some hearsay is admissible.

Character Evidence

Witness for the defense opens the door by offering good character evidence (reputation or opinion) of a trait pertinent to the crime for which defendant is tried. This is bad for the prosecution; the jury has just heard something good about the defendant. The jury might like the defendant now! What can the prosecution do? There are two options, and it's important to keep these options separate because they aren't identical. ~The prosecution might choose to cross examine the character witness. If it does that, it's not bound by reputation evidence or opinion evidence. It can offer specific instances of conduct to rebut the witness's prior testimony. ~The prosecution might choose to call up its own witness on direct to rebut the defendant's character witness. In that case, though, it'll be bound by reputation or opinion evidence. Why the difference? For a bar exam, the most important thing is to remember that there is a difference. But, at least for me, the "why" behind legal rules has been the way I've learned law.  

When cross examining the character witness, it's not only about the character of defendant; it's also about the credibility of the character witness. And it's entirely proper to impeach that character witness by asking about these types of specific acts.  

Hearsay & The Confrontation Clause

There are similarities between the policies underlying the 6th Amendment's Confrontation Clause and the policies underlying the rule against hearsay.  But it's important to understand that even if a statement falls within a hearsay exception, the 6th Amendment still gives defendants the right to confront witnesses against them. 

Another way of saying this is that the use of an out-of-court statement by the prosecution might still violate the defendant's 6th Amendment rights even if that statement would not be excluded by the rule against hearsay.

Specifically, admitting an out-of-court statement offered by the prosecution will violate a defendant's 6th Amendment rights even if the statement falls within a hearsay exception if (1): the statement was testimonial; (2): the witness who made the statement is unavailable to testify at trial; and (3): the defendant has not had an opportunity to cross examine the witness before trial. 

What kind of statements are testimonial? It's been noted that statements made to a police officer in the course of an investigation are often testimonial. In addition, statements that a witness reasonably believed would be used as a part of a criminal prosecution, it has been suggested, are likewise testimonial.

It's also important to note what type of statements are not deemed testimonial. Although statements made to the police to assist in an investigation are generally deemed testimonial, statements made to the police to assist in an ongoing emergency are considered non-testimonial. This is an objective test: the relevant question is whether the circumstances objectively indicated that the primary purpose of the police interrogation was to enable the officers to meet an ongoing emergency. If so, the statements should not be deemed testimonial, and thus would not be excluded by the Confrontation Clause of the 6th Amendment. 

There are elements to help determine whether the objective test rendering statements non-testimonial is satisfied. To determine the element of "ongoing emergency" the following factors are relevant: the nature of the dispute; the scope of the potential harm to a victim; the threat to additional identifiable victims; the existence of a more generalized threat to the public; whether the suspect was armed as well as the type of weapon used by the suspect, if armed; and whether the suspect remained at large. 

Elements 2 and 3 for determining whether a statement might violate the Confrontation Clause if admitted at trial are more straightforward than element 1. Element 3 is self explanatory, and element 2 defines "unavailable" as it's defined elsewhere. Unavailable means that the declarant is in a specific situation preventing the declarant from testifying. Importantly, a witness might be unavailable in this context even if the witness is present in court. For example, a witness might rightfully refuse to testify based on the 5th Amendment's privilege against self incrimination.

Character Evidence Nuances in Criminal Cases

The general rule for character evidence in a criminal case (defendant can offer reputation or opinion evidence of good character, and the prosecution can rebut that evidence) is essential to understand. But there are also a couple of nuances that you should look out for, since the MBE does test nuances. 

First is to understand that not only can defendant offer evidence of a good character for defendant's own benefit (see above), but, in limited circumstances, defendant can introduce reputation or opinion evidence of a bad character trait of the alleged victim. This is allowed only if it is relevant to show the defendant's innocence. The most likely scenario will be when the defendant is claiming self defense. To show that the alleged victim was the first aggressor, it may be necessary for defendant to offer reputation or opinion evidence as to the alleged victim's character for violence, aggressiveness, etc. 

If this evidence is offered by the defendant, the prosecution may rebut with reputation or opinion evidence of the alleged victim's good character for the same trait or the defendant's bad character for the same trait. 

It's worth noting, and this is a bit counter-intuitive, that even if defendant has not opened the door by offering evidence of the bad character of the alleged victim, the prosecution can offer evidence of the good character of the alleged victim in a homicide case in which the defendant is claiming self defense. In other words, in a case in which the defendant has claimed that the alleged victim was the initial aggressor, the prosecution can offer evidence of the alleged victim's character for peacefulness. And this is true regardless of whether the defendant has introduced character evidence of the victim's propensity for violence. 

Another nuance to keep in mind is specific to sexual misconduct cases. In any proceeding involving sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. In a criminal case, however, specific instances of the alleged victim's sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Specific evidence of the sexual behavior between the alleged victim and the defendant are likewise admissible by the prosecution for any reason, and by the defense to prove consent.

In a civil case, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and if its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of the alleged victim's reputation for this purpose is admissible only if it has been placed into controversy by the victim.

MBE Trap: Impeachment by Conviction of a Crime

It might seem, intuitively, that impeachment for convictions of felonies that have nothing to do with truthfulness would not be allowable. Impeachment, after all, is about calling into question the credibility of a witness, and it's questionable whether having been convicted of a felony that has nothing at all do with with dishonesty calls into question a witness's credibility.

But intuition doesn't guide here. All felonies (under the Federal rules) are admissible for this purpose. Misdemeanors, on the other hand, are only admissible to impeach if they are probative of dishonesty. The trap here is to not distinguish these types of crimes (and instead to lump them into one category: impeachment by conviction of crimes).

One commonality, though, is that both types of crimes can be proven by extrinsic evidence. That is, evidence outside of cross examination. The same rule above for misdemeanors applies for impeaching a witness on a prior bad act. A prior bad act is an act that does not result in a conviction but that is probative of truthfulness.

The difference here is that unlike with the misdemeanor rule above, impeaching on a prior bad act is only allowable on cross examination: extrinsic evidence is inadmissible.

MBE Tip: Character Evidence

A few important points to keep in mind to clear up a topic that most of my students find confusing: character evidence in a criminal case:

In a criminal case, the defense can open the door with positive reputation or opinion evidence but *only if that evidence is pertinent to the crime for which the defendant has been charged. The prosecution cannot open the door with negative evidence in the way described above. That would be deemed inadmissible character evidence. But once that door has been opened, the prosecution can walk through it in two different ways. The prosecution can call on direct its own witness to rebut the defendant’s character witness. If it chooses that route, it’ll be limited to the same evidence the defense was limited to when opening the door: pertinent reputation or opinion evidence. The prosecution can instead choose to cross examine the defendant’s character witness. Here, the prosecution can rebut defendant’s character witness with reputation evidence, opinion evidence, *and evidence of specific acts by defendant. Why are specific acts allowed on cross but not on direct. The theory is that those questions are geared not towards proving the defendant’s character (which would be inadmissible character evidence) but instead towards impeaching the defendant’s character witness.

Character Evidence vs. Impeachment

A foundational problem that people have with Evidence on the MBE is knowing whether the question is testing impeachment or character evidence. It’s tough to apply the correct law without knowing which law they are testing!

A solution (in those questions testing either impeachment or character): ~if a witness who is not the defendant is the focus, then the question is testing the rules of impeachment. ~if the defendant who is not a witness is the focus then the question is testing the rules of character evidence. ~if the defendant who is also a witness is the focus, things are less definite. As a witness, the defendant is subject to impeachment. But as the defendant, the rules of character apply. The best approach (this actually *always applies in Evidence) is to determine the reason why the evidence is offered. The reasons for impeaching a witness, and the reasons for excluding character evidence, sit on very different policies.

Impeaching a Witness

A few important points to keep in mind as you're studying the (tricky) subject of Evidence:

Can you impeach a witness with a felony that the witness committed less than 10 years ago even if that felony has nothing at all to do with the witness's ability to tell the truth?

Yes, that's admissible.

Can you impeach a witness with a misdemeanor that the witness committed less than 10 years ago even if that misdemeanor has nothing at all to do with the witness's ability to tell the truth?

No, that's inadmissible.

Can you impeach a witness on a prior bad act that the witness engaged in even if that prior bad act has nothing at all to do with the witness's ability to tell the truth?

No, that's inadmissible.

Impeachment by Conviction of a Crime (The Nuances)

Most will go into the bar exam understanding that a witness can be impeached by conviction of a crime. And that the type of crime (felony or misdemeanor) determines whether the crime used to impeach has to be probative of truthfulness to be admissible. 

But the MBE tests nuances, sometimes nuances that never show up in the released practice questions. In this post I'll focus on some of those nuances involved in impeaching a witness by conviction of a crime. 

It's important to keep in mind how long it's been since the conviction. But there are specifics to keep in mind about what's sometimes referred to as the "10 year rule." If more than 10 years have passed since either the witness's conviction or from release from confinement (whichever is later), then it's less likely that evidence of that conviction will be admissible to impeach the witness. Evidence of that conviction for purposes of impeaching the witness will only be admissible if its probative value substantially outweighs its prejudicial effect. Importantly, the proponent must give the adverse party reasonable written notice of the intent to use this conviction to impeach so that the adverse party has a fair opportunity to contest its use. 

Evidence of a conviction for the purposes of impeachment is never admissible if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated. This only applies if the person has not been convicted of a later felony. In addition, conviction evidence for the purpose of impeachment is never proper if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. 

Juvenile adjudications are not treated the same as adult convictions. Evidence of a juvenile adjudication is admissible to impeach only in criminal cases. Further, they are admissible only to impeach witnesses other than the defendant and only if an adult's conviction for that offense would be admissible to attack an adult's credibility. Lastly, prior to admitting this evidence for impeachment, it must be determined that admitting the evidence is necessary for determining guilt or innocence. 

A final point: it's worth noting that if a conviction is admissible to impeach a witness, it's admissible even if an appeal of that conviction is pending. The pendency of the appeal is likewise admissible. 

The Government-Informant Privilege

An MBE curveball I saw recently while working with a student is called the government informant privilege. Showed up in an official question, so they do test it. The privilege protects the government from being compelled to disclose the identity of informants.

But, as always with this test, the exceptions are as important as the rule. The privilege does not apply if: 1: The informant's identity is already known to those with cause to resent the communication to law enforcement, or 2: The defendant shows that the informant's identity is material to the establishment of a defense or otherwise needed for a fair determination of the case. Important to note that even when the privilege does apply, it only protects against revealing the informant's identity. It does not protect against revealing the contents of the informant's communication (provided revealing the content will not reveal the identity).

The Best Evidence Rule

This post will outline everything you've ever wanted to know about the Best Evidence Rule (and probably plenty that you've never wanted to know). 

The best place to start is with the rule itself: An original writing, recording, or photograph is generally required in order to prove its contents. A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or if the circumstances make it unfair to admit the duplicate.

Some definitions, therefore, are needed: 

Writing: Letters, words, numbers, or their equivalents set down in any form.

Recording: Letters, words, numbers, or their equivalents recorded in any manner.

Photograph: A photographic image or its equivalent stored in any form.

Original: An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by any person who executed or issued it. For electronically stored information, the original is any output readable by sight (provided it accurately refects the information). For a photograph, an original includes the negative or a print from it. 

Duplicate: A duplicate is the counterpart produced by the mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reflects the original.

Understanding the general rule is helpful, but, as anyone who has spent any time studying the MBE will realize, when there are exceptions to the general rule, those exceptions are often tested. Let's discuss some of those exceptions. 

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if all of the originals are lost or destroyed and if that is not due to an intentional act (bad faith) on the part of the proponent (the party offering the evidence). Likewise, an original is not required if the original cannot be obtained by any available judicial process. An original is likewise not required if the party against whom the original would be offered has control of the original, was at the time put on notice (by pleadings or otherwise) that the original would be a subject of proof at the trial or hearing, and fails to produce it at trial or hearing. Lastly, an original is not required if the writing, recording, or photograph is not closely related to a controlling issue. 

Sometimes, offering a large number of writings, recordings, or photographs simply might not be practical. In such cases, a summary, chart, or calculation may be used to prove the content of voluminous writings, recordings, or photographs. Even so, the proponent must make the originals (or duplicates of the originals) available for examination or copying by other parties at a reasonable time and place. 

The proponent of a writing, recording, or photograph may prove the content of that writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. Importantly, when offering the evidence in this manner, the proponent need not account for the original. 

Last bit to note is that, ordinarily, the court determines whether the proponent has fulfilled the conditions for admitting other evidence of writings, recordings, and photographs when an original is not required. In a jury trial, the jury determines whether a writing, recording, or photograph ever existed; whether one produced at trial is an original; and whether when offering evidence other than the original, that other evidence accurately reflects the content of the original. 

Expert Witnesses

Some of the most recently released questions from the NCBE deal with expert witnesses. Specifically, the focus of these questions is on when (and when not) expert testimony should be admissible. It's an important inquiry since experts can use their knowledge or skill to draw conclusions while non-experts can only base their opinions on information personally observed. 

In a very general sense, whether expert testimony is proper depends entirely on whether admitting that testimony will assist the jury. Stated otherwise, if the expert testimony will not assist the jury, then it should probably be excluded.

But that's a bit too general. The Federal Rules provide 4 elements, all of which must be satisfied, for expert testimony to be allowable.  Each of them plays off of the policy stated above: if any of the 4 is lacking, then the testimony is far less likely to assist the jury. 

A witness who is qualified as an expert (whether by knowledge, skill, experience, training, or education) may testify in the form of an opinion or otherwise if all of the following are satisfied:

~ the expert's scientific, technical or other specialized knowledge will help the jury to understand the evidence or to determine a fact in issue.

~ the testimony is based on sufficient facts or data

~ the testimony is the product of reliable principles and methods

~ the expert has reliably applied the principles and methods to the facts of the case

I'll end this post with a quote that I think adequately explains the reasons for expert testimony and the reasons why the elements above are what they are:

“There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.”

Excluding Witnesses from the Courtroom

With 175 scored questions on the MBE, no one questions seems all that significant. But it's nice to get them right. You'll probably see one question on excluding witnesses from the courtroom. Here's what's to know:

At any party's request, the court *must order witnesses excluded so that they cannot hear other witnesses' testimony. Without such a request, the court may do so. But under no circumstance may the court order the following witnesses removed:

--a party to the lawsuit (if the party is a natural person) --an officer/employee of a party that is not a natural person (for example, a business) who has been designated as representative of that party (for example, the manager of a business) --any person who is essential to a party presenting a claim/defense

--a person authorized by statute to be present All that is to say there is a mandatory component to removal, a discretionary component to removal, and then 4 exceptions to both the mandatory and discretionary components to removal.