By Genco Ceylan, EAGLE Facilitator
With special thanks to Professor Jeremy Gans, Subject Coordinator for Evidence and Proof who generously reviewed the draft of this advice.
The Evidence Exam: Strategies for Success
The Evidence Exam is a unique piece of assessment at Melbourne Law School. Unlike most exams up until this point, you aren’t presented with a hypothetical question or an open-ended essay prompt to work with. Rather, you’re provided with a long brief of evidence and left to build your own prosecution case and test it against the laws of evidence. This is a three-stage process that requires you to (1) build a factual case theory based on the evidence in the brief (‘the factual theory’); (2) describe how the evidence can rationally be used to prove the case (‘the proof’); and (3) evaluate the impact of the law of evidence on the proof (‘the law’).
In this post, I will aim to provide some clarity on these three stages and offer some principles on how to prepare well for the exam. In addition to the suggestions in this article, it is also important to consult the Guide to Academic Success for additional advice and guidance. Second-year EAGLE classes are also an excellent resource to apply the principles in this article in a practice examination context.
A General Approach
The Evidence Exam is a weekend-long assessment. It requires you to effectively divide up your time across different parts of it. Before getting stuck into the task, however, it’s important to note that your well-being is the most important thing to look after over the weekend. A healthy mind will help you perform well and will ultimately give you the stamina to spread your effort across all the assessments, not just parts of it. You should look to make time for the things that work to maintain your wellbeing. For me, this included making time to relax, listen to music, and go for walks. Taking consistent breaks will also help you clear your mind and approach the brief with fresh perspectives.
B The Stages of the Exam
The three stages of the Evidence Exam will require you to think in different ways. I’ll try to highlight some tips for success and some principles to keep front of mind for each of them. Before you get started, read through the brief, taking notes and highlighting as you go. I would also recommend putting the events that occur in the brief in chronological order, which can be done in Excel by creating three columns, one for dates, one for events, and the other for page number (or some other descriptor of where to find that bit of evidence).
Once you’ve put all that information in, sort the data by the ‘date’ column and you’ll have a chronology of what’s happened. Feel free to add in any extra columns that you think will be useful as well. For example, I added the following:
1 The Factual Theory
The factual theory is a creative writing exercise. You are a storyteller, trying to compel your reader to buy what you’re selling — a case theory. As you go through, the questions you should be asking yourself are twofold. First, does this make sense? Second, am I being persuasive? For some inspiration on this, I highly recommend the opening speech by Durham DA Jim Hardin on the 1st of July 2003 in the Michael Peterson case. This speech was set as required reading for my cohort in Week 1 of the course and is a great example of how to compel your audience by appealing to logic and human tendency. Remember to also consult your textbooks at this stage, as they are a great resource for the overarching principles of drafting a good factual theory.
An important thing to remember at this stage is to USE SUBHEADINGS! For clarity of expression and for the benefit of the marker, make sure you divide up your theory with subheadings where they are important (e.g., change of theme, the span of dates).
Where there is a gap in the evidence brief and you don’t know how to fill it, try to think about what you must prove and how likely the thing you’re trying to prove is. Don’t just skip over potentially challenging bits of evidence — explain how they fit into your narrative and why your explanation is the most compelling.
2 The Proof
At this stage, you are looking to take your factual theory and prove that it happened by referencing the brief. You are ultimately creating chains of logic to show that your assertions can be backed by things in the brief. Students can create these chains using graphs, words, or a combination of both. There is no great advantage to any given approach beyond what works best for you but consult with your teacher to see whether they have a preference. I opted for introductory graphs that I explained with dot points. For every dot point assertion I made, I’d refer it to a piece of evidence and cite the page the evidence was from in the footnote.
The thing to keep front of mind here is to consistently check whether your claims flow in a logical chain. Make sure you set out all the necessary and important chains of reasoning. If there’s an important defence argument that needs rebutting, it can just be expressed as a prosecution chain of reasoning. Assumptions don’t have to be spelt out — they can be implicit in the way you structure your chains of reasoning.
3 The Law
At this stage, you want to determine whether the evidence you used in Part 2 to back up Part 1 is admissible. This requires applying the laws of evidence to the bits of evidence in the brief. There is no great secret to this exercise. It requires knowing the law and understanding how it works. Don’t worry, you can revisit your understanding of how admissibility laws work over the weekend. However, you’ll want to have prepared well enough in advance that you can quickly focus on what to review. It must also be noted that if this is the part of the exam you feel least confident about, it’s the part you should devote the most time to. Listen closely to what your teachers say in sessions and how they frame certain rules and note where there is uncertainty. Make sure that you are making the examiner’s job easier by referencing which parts of evidence you’re analysing, either in the footnotes or in the body text.
C Some Useful Things to Remember
- Your teachers are reading the documents on a screen so make sure it is easy to navigate the electronic document. Don’t ask them – or expect them – to scroll around the document to find references.
- Read the ideal exam response after reading or attempt your own response, as well as any of the feedback given for past exams (this is a great way to pick up common mistakes made in past years).
- Read the sample analysis in the Appendix of Andrew Palmer, Proof: How to Analyse Evidence in Preparation for Trial (Thomson Reuters, 3rd ed, 2015) 185–235
- Refer to the people by their last name or first name, not abbreviations.
- Proofread your paper as you go — don’t leave it to the last minute.
- Read the exam covering letter carefully to ascertain:
- Word count code
- Whether the text in your diagrams count towards the word count
- Collaboration code
- Use informative consistent headings.
- More focus on complex and contentious issues and avoided overexplaining straightforward issues.
Above all, follow your intuition and reasoning! Good luck!