Themis Bar Review Hangout - July 2017

[Samarcan]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

[robin600]

Can anyone explain to me how Question ID 4538 is not a Bruton violation?

[redsox550]

ok i know this is basic shit, but it would be super helpful if someone can describe in plain english when article 9 / secured transactions applies vs. article 3 / commercial paper.

My understanding is this:

if someone is enforcing a security interest in something (does it only apply to goods, or land also) then article 9

if someone just made a note saying, i owe X 10g . then that is article 3

if someone makes a note that says i owe X 10g and because of this i will grant security interest - only article 3?

[IronCobra]

Working on the constitutional law MBE PQs session 5 and once again, many of Themis's con law MBE questions are pure shit.

[louieli]

For others who've done Mixed PQ Set 12, how hard did it feel for you? I can't tell if I'm finally getting the hang of these or if it was just an extra easy set.

[robin600]

I just scored a 64% on PQ8 and feel like an idiot compared to how you guys are doing!

[gatorfan163287]

I just scored a 64% on PQ8 and feel like an idiot compared to how you guys are doing!

Lol 64% is fine. That's not far off from where everyone has been scoring on here and it's passing. Keep in mind the raw score gets curved as well on the real thing.

[screwtapeletters]

I just scored a 64% on PQ8 and feel like an idiot compared to how you guys are doing!

Awwwwwww you are bound to fail!

Haha...just teasing. I got 48% on the 200q set couple of days ago. Hope that makes you feel better. Here I come feb...

[lavarman84]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

I think you're looking at the general rule (Critical Pass) and an exception (Themis). If you look at the Federal Rules, it's explicitly in there, so you can't really doubt it.

[uceoledinbdnrn]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

I think you're looking at the general rule (Critical Pass) and an exception (Themis). If you look at the Federal Rules, it's explicitly in there, so you can't really doubt it.

Yup. I'm also pretty sure the exception isn't mentioned in Critical Pass.

The key is that the character trait has to be an ESSENTIAL element of the crime charged. Like, for example, say the President of State College is on trial for criminal endangerment of a child for hiring Schmoe Schandusky and putting him in charge of their children's camps. A crucial element of that charge would be showing that it was criminally negligent to let Schmoe go anywhere near kids. And you could prove that by introducing evidence relating to Schmoe's character, including specific past instances of Schmoe molesting children. Alternatively, the President could defend himself by introducing specific acts of Schmoe interacting well with kids/not raping them to argue that hiring them wasn't negligent.

I feel like this exception is most likely to come up in a torts context for something like libel. If I call Schmoe a serial child rapist or something and truth is an absolute defense, whether or not Schmoe actually raped children becomes a crucial element of a libel claim against me and thus it's open season for specific prior acts evidence about Schmoe. Not about me though.

[logicspeaks]

For others who've done Mixed PQ Set 12, how hard did it feel for you? I can't tell if I'm finally getting the hang of these or if it was just an extra easy set.

I did a little better than usual, getting 72% on the twelfth set when I've been averaging in the high 60's.

[jennifer_42]

Has anyone else grown to loathe with every fiber of their being the phrase "Sorry, that's not the best choice."? Argh.

[louieli]

For others who've done Mixed PQ Set 12, how hard did it feel for you? I can't tell if I'm finally getting the hang of these or if it was just an extra easy set.

I did a little better than usual, getting 72% on the twelfth set when I've been averaging in the high 60's.

Oh ok, I got 78% on it when I've been averaging between 60 and 70 so probably a combination. Thanks!

[gatorfan163287]

For others who've done Mixed PQ Set 12, how hard did it feel for you? I can't tell if I'm finally getting the hang of these or if it was just an extra easy set.

I did a little better than usual, getting 72% on the twelfth set when I've been averaging in the high 60's.

Oh ok, I got 78% on it when I've been averaging between 60 and 70 so probably a combination. Thanks!

Pretty sure that mixed problem sets are not all the same for each of us. I had my internet cut out in the middle of one, exited out, reset the router, and when I went back into the problem set I had a different question and the question I had didn't show up again until like 5 problem sets later.

[SplitMyPants]

they're definitely not. me and my gf are both prepping rn w/ themis, and we can 100% confirm that the mixed question sets do not correspond with one another.

[cho8583]

For those who also do Strategy and Tactics book along with Themis.. Am I only one that ST qs are much harder than Themis'?

[saywhat88]

For those who also do Strategy and Tactics book along with Themis.. Am I only one that ST qs are much harder than Themis'?

i started working though st this week. i found civ pro to be very difficult. i've been scoring higher on the q's for ST outside of civ pro though.

does anyone know how the st book compares to the real thing?

[cho8583]

For those who also do Strategy and Tactics book along with Themis.. Am I only one that ST qs are much harder than Themis'?

i started working though st this week. i found civ pro to be very difficult. i've been scoring higher on the q's for ST outside of civ pro though.

does anyone know how the st book compares to the real thing?

Civ Pro qs from ST are made by the author. I think the real thing won't be like ST so I skipped Civ Pro qs.

So you don't think it is harder than Themis? hmm maybe its just me tho.. which is scary.

[MelaPela]

For those who also do Strategy and Tactics book along with Themis.. Am I only one that ST qs are much harder than Themis'?

i started working though st this week. i found civ pro to be very difficult. i've been scoring higher on the q's for ST outside of civ pro though.

does anyone know how the st book compares to the real thing?

Civ Pro qs from ST are made by the author. I think the real thing won't be like ST so I skipped Civ Pro qs.

So you don't think it is harder than Themis? hmm maybe its just me tho.. which is scary.

I switched over the ST for now - at least until I get through all the subjects in the book - since I've done 11 Themis sets and feel like that's sufficient. Also skipped Civ Pro in ST, but finding the other subjects easier than Themis. My experience has been that POE usually leads me to the right answer for the ST questions.

Had been averaging ~68-70% (sometimes lower, sometimes higher) on Themis, and consistently getting ~75% in ST (but have only done 3 subjects).

[whats an updog]

I find that adaptibar is marginally easier for every subject but civpro which is marginally more difficult.

[nichsull]

Did anyone else do Con law essay 1870? It was a freedom of speech essay question. Can anyone explain what the sample answer was trying to get at and how it related to the questions asked. The sample seemed to just go in a circle and not really answer anything. I felt pretty good about answering it but then reading the sample I felt like I had the right answer topics but didn't explain them as the sample did.

The question asked for what arguments can be made to stop the person in question for being convicted of violating the statutes but the sample did not really do that for the first question. It just went in a round about way to mention a Supreme Court case, and then threw vagueness and over breadth at the end. The second question was just as jumbled of an answer.

[Samarcan]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

I think you're looking at the general rule (Critical Pass) and an exception (Themis). If you look at the Federal Rules, it's explicitly in there, so you can't really doubt it.

Yup. I'm also pretty sure the exception isn't mentioned in Critical Pass.

The key is that the character trait has to be an ESSENTIAL element of the crime charged. Like, for example, say the President of State College is on trial for criminal endangerment of a child for hiring Schmoe Schandusky and putting him in charge of their children's camps. A crucial element of that charge would be showing that it was criminally negligent to let Schmoe go anywhere near kids. And you could prove that by introducing evidence relating to Schmoe's character, including specific past instances of Schmoe molesting children. Alternatively, the President could defend himself by introducing specific acts of Schmoe interacting well with kids/not raping them to argue that hiring them wasn't negligent.

I feel like this exception is most likely to come up in a torts context for something like libel. If I call Schmoe a serial child rapist or something and truth is an absolute defense, whether or not Schmoe actually raped children becomes a crucial element of a libel claim against me and thus it's open season for specific prior acts evidence about Schmoe. Not about me though.

Thanks, this is helpful. One quick follow-up: is honesty/trustworthiness "essential" if the crime is embezzlement, or a similar theft-related offense, such that the defendant could introduce specific prior acts of trustworthiness to show his character is inconsistent with that crime? Or is that not "essential"?

[IronCobra]

Did anyone else do Con law essay 1870? It was a freedom of speech essay question. Can anyone explain what the sample answer was trying to get at and how it related to the questions asked. The sample seemed to just go in a circle and not really answer anything. I felt pretty good about answering it but then reading the sample I felt like I had the right answer topics but didn't explain them as the sample did.

The question asked for what arguments can be made to stop the person in question for being convicted of violating the statutes but the sample did not really do that for the first question. It just went in a round about way to mention a Supreme Court case, and then threw vagueness and over breadth at the end. The second question was just as jumbled of an answer.

Regarding the first question, the case law (via Brandenburg) says that the government may restrict speech when it is (1) directed at inciting or producing imminent lawless action, AND (2) the speech is likely to incite or produce such action. So the first question was applying that test to the Sedition Statute and the defendant's behavior.

Regarding the second question, "fighting words" are not a protected form of speech. So the question was aimed at whether the Abusive Word’s Statute was limited to prohibiting fighting words, or if the statute was overbroad or vague and swept in more speech than simply fighting words. If it's the latter, then the statute is unconstitutional.

I hope that helps. I just took a class on the First Amendment this past semester and the case law is an absolute mess, so don't get too worried that the answer seems like it's going in circles. That's how I felt reading 90% of SCOTUS First Amendment cases. It's a topic that's prime for bullshitting answers to.

[uceoledinbdnrn]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

I think you're looking at the general rule (Critical Pass) and an exception (Themis). If you look at the Federal Rules, it's explicitly in there, so you can't really doubt it.

Yup. I'm also pretty sure the exception isn't mentioned in Critical Pass.

The key is that the character trait has to be an ESSENTIAL element of the crime charged. Like, for example, say the President of State College is on trial for criminal endangerment of a child for hiring Schmoe Schandusky and putting him in charge of their children's camps. A crucial element of that charge would be showing that it was criminally negligent to let Schmoe go anywhere near kids. And you could prove that by introducing evidence relating to Schmoe's character, including specific past instances of Schmoe molesting children. Alternatively, the President could defend himself by introducing specific acts of Schmoe interacting well with kids/not raping them to argue that hiring them wasn't negligent.

I feel like this exception is most likely to come up in a torts context for something like libel. If I call Schmoe a serial child rapist or something and truth is an absolute defense, whether or not Schmoe actually raped children becomes a crucial element of a libel claim against me and thus it's open season for specific prior acts evidence about Schmoe. Not about me though.

Thanks, this is helpful. One quick follow-up: is honesty/trustworthiness "essential" if the crime is embezzlement, or a similar theft-related offense, such that the defendant could introduce specific prior acts of trustworthiness to show his character is inconsistent with that crime? Or is that not "essential"?

Nope. Good people can steal and bad people can not steal. It's a little probative, but mostly excluded for all the same policy reasons we exclude specific act evidence from most criminal trials.

I'm pretty sure the only way specific-act evidence against the defendant can get into a theft case is if the defendant calls a witness to testify about her stellar character (using non-specific examples) and, on cross, the defense says something like "o yeah- you say Daenerys is an upstanding citizen but what about that one time she let her brother be burned to death by molten gold" or something like that. But they can only ask the character witness about it, they can't introduce extrinsic evidence. Like you couldn't produce Viserys's gilded head as proof that Danny was a bad person.

[Samarcan]

A question I have been struggling with: Themis says that in a criminal case, a defendant can introduce specific prior acts/conduct if they are inconsistent with a character trait that is an essential element of the crime charged. Critical Pass flashcards (card #6, for anyone curious) says that a criminal defendant can only introduce his own good character, even when pertinent to the charged crime, by reputation or opinion testimony not specific instances.

Is this an inconsistency, or am I missing a nuance? Please help clarify if you can!

Where are you seeing in Themis that it's okay to introduce specific acts? In the Evidence outline (page 11 of MBE Outline, page 12 of CA outline), it says that a defendant can only prove their own good character by reputation testimony or opinion testimony.

Page 11 of the main MBE Evidence outline (I'm taking in NY), it says in the shaded gray box: "When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b)."

I think you're looking at the general rule (Critical Pass) and an exception (Themis). If you look at the Federal Rules, it's explicitly in there, so you can't really doubt it.

Yup. I'm also pretty sure the exception isn't mentioned in Critical Pass.

The key is that the character trait has to be an ESSENTIAL element of the crime charged. Like, for example, say the President of State College is on trial for criminal endangerment of a child for hiring Schmoe Schandusky and putting him in charge of their children's camps. A crucial element of that charge would be showing that it was criminally negligent to let Schmoe go anywhere near kids. And you could prove that by introducing evidence relating to Schmoe's character, including specific past instances of Schmoe molesting children. Alternatively, the President could defend himself by introducing specific acts of Schmoe interacting well with kids/not raping them to argue that hiring them wasn't negligent.

I feel like this exception is most likely to come up in a torts context for something like libel. If I call Schmoe a serial child rapist or something and truth is an absolute defense, whether or not Schmoe actually raped children becomes a crucial element of a libel claim against me and thus it's open season for specific prior acts evidence about Schmoe. Not about me though.

Thanks, this is helpful. One quick follow-up: is honesty/trustworthiness "essential" if the crime is embezzlement, or a similar theft-related offense, such that the defendant could introduce specific prior acts of trustworthiness to show his character is inconsistent with that crime? Or is that not "essential"?

Nope. Good people can steal and bad people can not steal. It's a little probative, but mostly excluded for all the same policy reasons we exclude specific act evidence from most criminal trials.

I'm pretty sure the only way specific-act evidence against the defendant can get into a theft case is if the defendant calls a witness to testify about her stellar character (using non-specific examples) and, on cross, the defense says something like "o yeah- you say Daenerys is an upstanding citizen but what about that one time she let her brother be burned to death by molten gold" or something like that. But they can only ask the character witness about it, they can't introduce extrinsic evidence. Like you couldn't produce Viserys's gilded head as proof that Danny was a bad person.

Thanks! I've been having trouble identifying what is/is not an "essential element" of a crime/defense, and it sounds like maybe the best strategy is, as you say, just to think of the very narrow, specific torts like defamation, negligent entrustment, child custody, where the element is specifically built into the tort itself, and the specific-act exception is restricted to those and can't really be extrapolated to a lot of thing things. Kind of an artificial way to think about it, but hey if that's what the Bar Examiners want!...