MBE Rules - All Subjects Flashcards
Admissibility of Criminal Defendant’s Prior Crimes or Bad Acts
Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (MIMIC – Motive, Intent, Absence of Mistake, Identity, Common Plan of Scheme, and Other (knowledge of crime))
Evidence
Inadmissbility of Criminal Defendant’s Prior Crimes or Bad Acts
Under Federal Rule of Evidence (FRE) 404, evidence of a criminal defendant’s prior crimes or wrongful acts is inadmissible if it is **used to show the defendant’s propensity **(or inclination) to commit the charged crime.
This helps to ensure that the jury convicts the defendant for committing the charged crime—not for having a bad character.
Evidence
Can a witness or defendant be **impeached ** with evidence of prior conviction?
Yes. Any witness, including a criminal defendant, can be impeached with evidence of a prior conviction for a crime involving dishonesty if the conviction occurred within the **previous 10 years **
Evidence
Can a child testify as a witness?
Every person, including a child, is generally presumed competent to be a witness until proven otherwise. The child must have personal knowledge and if a child’s competency is questioned, then the court must evaluate the child’s:
- Intelligence
- ability to differentiate between truth and falsehood and
- understanding of the importance of telling the truth.
Evidence
Admissibility of a Remedial Measure and Timing of Injury
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured.
A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
Evidence
When is an out of court statement excluded from hearsay rule and admissible?
If:
(1) the declarant **testifies **and is subject to cross-examination at trial and
(2) the declarant’s statement satisfies any of the following criteria:
- it is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
- it is consistent with the declarant’s testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds or
- it identifies a person as someone the declarant perceived earlier.
Evidence
Is a judgment of acquital an exception to hearsay?
No. One exception exists for judgments of conviction. However, no such exception exists for judgments of acquittal.
Evidence
Can evidence of a plea bargain be used to impeach?
Yes. Plea bargains can be used for impeachment purposes when the defendant who made the plea is a prosecution witness in another defendant’s trial
Evidence
A witness can be impeached with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony.
Is evidence of a witness’s juvenile conviction admissible in civil cases?
No, evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness
Public Records Hearsay Exception
Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
When is an original or document document not necessary?
when the contents go toward a collateral issue—i.e., an unimportant or undisputed issue or fact.
Marital-Communications Privilege
Protects confidential communications made between spouses during the marriage.
Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and:
* (1) refuse to testify about the communication or
* (2) prevent the other spouse from testifying.
When is Character Evidence Admissible?
Such evidence is admissible substantively in rare instances when character (or a character trait) is an **essential element **of a civil claim, criminal charge, or asserted defense—e.g., in a defamation action. In such cases, character evidence can be introduced by any party through either:
- Reputation or opinion testimony on that essential character trait or
- Specific instances of conduct (e.g., prior instances of adultery) demonstrating that trait.
Is an affidavit former testimony?
No – it does not fall within a hearsay exception
If witness is unavailable but there is an affidavit, it that admissible?
No – the affidavit is hearsay and does not fall within an exception
Is evidence of a habit admissible?
Yes. Evidence of a person’s habit is **admissible **to prove that the person acted in accordance with that habit on a particular occasion.
Can a party attack a witness’s character for truthfulness?
Yes. A party can attack any witness’s character for truthfulness with reputation or opinion testimony OR with specific instances of conduct (SICs) that are probative of that character
Specific Incidents of Conduct for attacking witness’s character for truthfulness
Only two types of SICs are admissible for this purpose: (1) convictions for a felony or crime of dishonesty and (2) other bad acts.
Does an arrest qualify as a bad act for witness character?
No. A mere arrest does not qualify as a bad act that can be used to attack a witness’s character for truthfulness.
Expert Witness Testimony
An expert witness typically may offer an opinion on an ultimate issue. That opinion may be based on facts and data that the expert has personally observed or has been made aware.
What happens when the facts/data an expert witness relies on is not available?
When such facts and data are not admissible (e.g., because they constitute hearsay), the opinion itself is still admissible if **experts in that particular field would reasonably rely **on those kinds of facts and data in forming an opinion.
When does federal law versus state law apply for Rules of Evidence?
Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases. Under this rule, when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases such as this one), the court should apply state law to determine the effect of a presumption on the claim or defense.
How much notice must be provided to the other party for a default judgment hearing?
10 Days — otherwise party can seek a motion to set aside the default judgment
When is a life tenant liable to the holder of the future interest for property taxes?
Only to the extent of rents received, or the fair market value of the property if the life tenant is occupying the property. If the life tenant is not occupying and not renting the property, then the future interest holder cannot sue for unpaid taxes.
States and localities cannot require US citizenship for access to
Private employment or for government benefits
On the bar exam, what answer to select for fighting word statues?
The speech may not be protected and the statute must be struck down as vague and over broad.
What is a fixture?
A chattel that has been so affixed to land that is has ceased being personal property and has become party of realty
