Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.
In a previous post, I offered my advice regarding a general approach to studying for the MBE. In this post, I will review a specific concept that many students find to be difficult when preparing for the exam. The topic is character evidence in criminal cases, and the rule to consult is in article IV of the Federal Rules of Evidence.
When studying evidence, you should first ensure that you have a clear understanding of the general rules before tackling the exceptions. As such, let’s review rule 404. That rule states that evidence of a person’s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.
Now, for the exceptions in criminal cases: The defendant (or accused) can present evidence of his/her own good character (provided that it is a pertinent character trait), in an effort to prove that he acted in conformity with that trait on a particular occasion. The defendant also can introduce evidence of a pertinent character trait of the alleged victim in an effort to prove that the alleged victim acted in conformity with that trait on a particular occasion. In either of these two situations, the door is open for the prosecution to offer evidence rebutting the evidence offered by the defense.
The prosecution is also able to offer character evidence of peacefulness of the alleged victim in a homicide case to rebut evidence that the alleged victim was the first aggressor.
Evidence of the character of a witness can also be introduced for impeachment purposes, but when studying these rules, it is best to keep these topics separated for practical purposes. Rules regarding impeachment can be found in Article VI of the code.
Finally, you should note that although the general rule (see above) prevents evidence from being offered for the purpose of proving that a person acted in conformity with a particular character trait, that same evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake/accident. This rule exemplifies the importance of focusing not only upon what evidence is being presented, but WHY or for what purpose) the evidence is being presented.
I hope you’ve found this short summary to be helpful. I intend on posting further “breakdowns” in the future; so please feel free to post requests in the comments!
Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com. Reprinted by permission.
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Thank you for your feedback! I’ll address each of your requests in the weeks to come.
Best,
Sean
Thank you so much for your help!
Thank you for this breakdown! It was very helpful. Character evidence is one of the rules I’ve written out on a chart and posted on my wall so I can read it often.
As far as requests, can you provide a breakdown of Buyer/Seller remedies under the U.C.C.? If there’s a simple way to remember that, it’d be great. It’s also going to be posted on my wall soon.
Also, a small breakdown on “truth of the matter asserted,” (hearsay) would be helpful. At times, I’m finding it difficult to determine whether a piece of evidence is being offered for its truth in practice MBE questions. I may be over thinking it, or there may just be a simpler explanation out there to help me to fully grasp it 100%. I thought that was one of the easiest things I learned in law school, but in practice questions, I’m seeing that it’s not so simple (at least for me).
And one last request, please: mortgage rules in Property Law. Every time I get a mortgage question (mainly the ones dealing with at least 3 different parties, and determining who is entitled to the property, or who is entitled to recover from the defendant for defaulting), my eyes immediately “glaze over.” Any help would be greatly appreciated.
Thank you!!