Comments on: Final February MBE Question of the Day (#52) http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sun, 01 Aug 2010 09:54:39 +0000 http://wordpress.org/?v=2.9 hourly 1 By: Maryann Herman http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1027 Maryann Herman Sat, 20 Feb 2010 17:20:59 +0000 http://barexambrief.com/?p=1016#comment-1027 Answer D is correct. Evidence is admissible under Federal Rule 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. However, it must be shown that the prior acts were close enough in time to be connected with the crime charged and probative on one of those issues. Because the hot dog incident took place thirty minutes earlier, concerned a petty theft-as opposed to a fight-and did not appear to involve the victim, it is not relevant to prove any of the elements which can be proven under Federal Rule 404(b) and could only be relevant to proving the defendant's bad character. For that purpose it is inadmissible. Answer A is incorrect. Evidence of propensity to commit unlawful acts is evidence of character. The prosecution can only introduce character evidence of a criminal defendant under Federal Rule 404(a) after the defense has "opened the door" by introducing evidence of the defendant's good character. In this question, the defendant has not opened the door and therefore the prosecution cannot introduce character evidence. Moreover, if character evidence could be introduced, it could only be in the form of reputation or opinion evidence, not by evidence of specific instances of conduct. Answer B is incorrect. Evidence of prior bad acts is admissible under Federal Rule 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. However, it must be shown that the prior acts were close enough in time to be connected with the crime charged and probative on one of those issues. Because the hot dog incident took place thirty minutes earlier, concerned a petty theft-as opposed to a fight-and did not appear to involve the victim, it is not very probative on the motive or intent relating to the assault charge, and thus should not be allowed. Answer C is incorrect. If evidence of a specific instance of conduct is admissible to prove an element of a criminal offense, such as identity under Federal Rule 404(b), there need not be evidence of an arrest or conviction, just substantial evidence that the offense was committed. A conviction is only necessary when impeaching a witness's truth and veracity by showing prior crimes. Answer D is correct. Evidence is admissible under Federal Rule 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. However, it must be shown that the prior acts were close enough in time to be connected with the crime charged and probative on one of those issues. Because the hot dog incident took place thirty minutes earlier, concerned a petty theft-as opposed to a fight-and did not appear to involve the victim, it is not relevant to prove any of the elements which can be proven under Federal Rule 404(b) and could only be relevant to proving the defendant’s bad character. For that purpose it is inadmissible.

Answer A is incorrect. Evidence of propensity to commit unlawful acts is evidence of character. The prosecution can only introduce character evidence of a criminal defendant under Federal Rule 404(a) after the defense has “opened the door” by introducing evidence of the defendant’s good character. In this question, the defendant has not opened the door and therefore the prosecution cannot introduce character evidence. Moreover, if character evidence could be introduced, it could only be in the form of reputation or opinion evidence, not by evidence of specific instances of conduct.

Answer B is incorrect. Evidence of prior bad acts is admissible under Federal Rule 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. However, it must be shown that the prior acts were close enough in time to be connected with the crime charged and probative on one of those issues. Because the hot dog incident took place thirty minutes earlier, concerned a petty theft-as opposed to a fight-and did not appear to involve the victim, it is not very probative on the motive or intent relating to the assault charge, and thus should not be allowed.

Answer C is incorrect. If evidence of a specific instance of conduct is admissible to prove an element of a criminal offense, such as identity under Federal Rule 404(b), there need not be evidence of an arrest or conviction, just substantial evidence that the offense was committed. A conviction is only necessary when impeaching a witness’s truth and veracity by showing prior crimes.

]]> By: Donna http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1026 Donna Sat, 20 Feb 2010 11:58:05 +0000 http://barexambrief.com/?p=1016#comment-1026 D is the best choice. Hi charachter for truthfulness is not at issue so the fact that he did not pay for hot dog would be irrelevant unless his character was attacked. D is the best choice. Hi charachter for truthfulness is not at issue so the fact that he did not pay for hot dog would be irrelevant unless his character was attacked.

]]> By: D http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1015 D Sat, 20 Feb 2010 03:02:43 +0000 http://barexambrief.com/?p=1016#comment-1015 Good luck to everyone of you. I hope we don’t meet here again Good luck to everyone of you. I hope we don’t meet here again

]]> By: D http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1014 D Sat, 20 Feb 2010 02:58:06 +0000 http://barexambrief.com/?p=1016#comment-1014 D as in done! D as in done!

]]> By: ThomCA http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1013 ThomCA Sat, 20 Feb 2010 02:20:12 +0000 http://barexambrief.com/?p=1016#comment-1013 D is my best guess. C is tempting, but def is not before the court on the theft charge. Moreover, no MIMIC exception applies because the incidents are completed unrelated. D is my best guess.

C is tempting, but def is not before the court on the theft charge. Moreover, no MIMIC exception applies because the incidents are completed unrelated.

]]> By: mimi http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1011 mimi Fri, 19 Feb 2010 22:16:47 +0000 http://barexambrief.com/?p=1016#comment-1011 answer D - Accused in criminal case- generally only accused can initiate • The prosecution cannot initiate evidence of bad character of the D merely to show that she is more likely to have committed the crime. PLI - evidence of a defendant’s bad character cannot be introduced by the prosecution. The Federal Rules of Evidence, 404 (b), does allow for wrongful acts and past crimes to be admitted into evidence as circumstantial proof of an element of a crime. However, in a trial, the judge must carefully consider if the risk of undue prejudice substantially outweighs the value of the past crimes as evidence. o • Prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime. • The accused, however, may introduce evidence of here good character to show her innocence of the alleged crime. answer D – Accused in criminal case- generally only accused can initiate
• The prosecution cannot initiate evidence of bad character of the D merely to show that she is more likely to have committed the crime.
PLI – evidence of a defendant’s bad character cannot be introduced by the prosecution. The Federal Rules of Evidence, 404 (b), does allow for wrongful acts and past crimes to be admitted into evidence as circumstantial proof of an element of a crime. However, in a trial, the judge must carefully consider if the risk of undue prejudice substantially outweighs the value of the past crimes as evidence.
o
• Prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime.
• The accused, however, may introduce evidence of here good character to show her innocence of the alleged crime.

]]> By: gmevans http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1007 gmevans Fri, 19 Feb 2010 17:31:56 +0000 http://barexambrief.com/?p=1016#comment-1007 I believe the answer is D. The stealing of a hot dog has no relevance to the assault charge and is inadmissible as such. Good luck to all next week! I believe the answer is D. The stealing of a hot dog has no relevance to the assault charge and is inadmissible as such. Good luck to all next week!

]]> By: Ken http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1006 Ken Fri, 19 Feb 2010 17:09:50 +0000 http://barexambrief.com/?p=1016#comment-1006 D, -- No propensity evidence, the unpaying for evidence is being offerred to show the other crime; it does not come under 404.b motive, plan, mistake (absense if); common scheme, intent or plan. c is wrong; similar acts do not need convictions, only 404 b relevancy. D,

– No propensity evidence, the unpaying for evidence is being offerred to show the other crime; it does not come under 404.b motive, plan, mistake (absense if); common scheme, intent or plan.

c is wrong; similar acts do not need convictions, only 404 b relevancy.

]]> By: Cheese http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1005 Cheese Fri, 19 Feb 2010 17:07:17 +0000 http://barexambrief.com/?p=1016#comment-1005 Im going with C. Im going with C.

]]> By: RK http://barexambrief.com/2010/02/19/mbe-question-of-the-day-52/comment-page-1/#comment-1004 RK Fri, 19 Feb 2010 17:06:20 +0000 http://barexambrief.com/?p=1016#comment-1004 B is the best answer. This is admissible because the prior incident was so close in time and place and may be admitted under FRE 404(b). B is the best answer. This is admissible because the prior incident was so close in time and place and may be admitted under FRE 404(b).

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