MBE Question Thread Forum

[Puffman1234]

When can you use extrinsic evidence to impeach a witness? Never?

This is my understanding.

The general rule is that you can use extrinsic evidence to impeach a witness for anything OTHER than: pure character evidence or a collateral matter. The two exceptions are FRE 405(b) (using prior acts to establish character where character is an essential element of the cause of action or defense) and FRE 404(a)(2)(C) (prosecution can use any evidence to establish victim's peacefulness in order to rebut defendant's evidence that victim was the first aggressor in a homicide case).

The general rule applies whether you're impeaching the witness' character for truth and veracity ("CTV") or just establishing character evidence in general. If what you're asking about impeaches a witness's CTV and does nothing else, you can't use extrinsic evidence, but you can ask about it. For example, you can ASK the witness "you once stole money from your boss, didn't you?" If the witness says no, and there's no other relevance to that supposed act other than to attack the witness' CTV, you have to move on. This is the case even where you have a videotape that would easily establish that the witness is lying and that they did in fact steal the money.

Same goes for impeaching by collateral evidence. Say the witness testifies that he was eating a hamburger when he witnessed the vehicular accident that is the subject of the trial. You have a tape recording of him at the scene of the accident telling another bystander "I was eating a fish sandwich and I just saw that car hit the other car." You want to impeach the witness using this prior inconsistent statement. You can ask—"you said today that when you witnessed the car crash you were eating a hamburger, but isn't it true you told another witness the day the crash happened that you were eating a fish sandwich?," but once again you have to take the answer.

Impeachment that goes to bias or perception is never collateral, and only in rare instances will be categorized as going to the witness' CTV. Impeachment by prior inconsistent statement may or may not be considered impeachment on a collateral issue. So basically, if it's on something that isn't collateral and isn't purely related to the witness' CTV, you can use extrinsic evidence.

The whole idea of "collateral" is just an offshoot of FRE 403, the balancing test (which is invoked most often to weigh the probative value of evidence versus its prejudicial value, but also prohibits undue delay, waste of time, etc.). The circuit courts have basically said that when something is collateral (has no independent relevance other than contradicting the witness), it's a waste of time to have a little "mini trial" to actually prove the collateral evidence.

[Bobby_Axelrod]

When can you use extrinsic evidence to impeach a witness? Never?

To impeach on a non-collateral matter you can use extrinsic evidence,, also a prior inconsistent statement i's considered extrinsic

Whether you can use extrinsic evidence to impeach varies depending on how you're using it. For example, impeaching with prior conviction --> yes you can use. But, impeaching with prior bad act --> not allowed.

[ConfusedL1]

Does does hearsay within hearsay never apply to any document that qualifies under the business records exemption?

E.g. Nurse is sure she made a notation about what a doctor said to her, but she can't remember who that doctor was.

[Bobby_Axelrod]

Does does hearsay within hearsay never apply to any document that qualifies under the business records exemption?

E.g. Nurse is sure she made a notation about what a doctor said to her, but she can't remember who that doctor was.

You can have hearsay within hearsay in a business record. Someone can be under a duty to write down statements made by someone outside of the business. E.g. If a nurse writes down statements made by victim.

[ConfusedL1]

Does does hearsay within hearsay never apply to any document that qualifies under the business records exemption?

E.g. Nurse is sure she made a notation about what a doctor said to her, but she can't remember who that doctor was.

You can have hearsay within hearsay in a business record. Someone can be under a duty to write down statements made by someone outside of the business. E.g. If a nurse writes down statements made by victim.

Thanks. Sorry, I didn't mean "can it exist," I mean "can it be admitted even if it does exist"

Nurse is the one who makes the entry, she has person knowledge and the duty etc. No problem there.

Doctor is the one from whom the statement came and offered for its truth. Problem?

Is that OK because the general exemption covers it?

[Bobby_Axelrod]

Does does hearsay within hearsay never apply to any document that qualifies under the business records exemption?

E.g. Nurse is sure she made a notation about what a doctor said to her, but she can't remember who that doctor was.

You can have hearsay within hearsay in a business record. Someone can be under a duty to write down statements made by someone outside of the business. E.g. If a nurse writes down statements made by victim.

Thanks. Sorry, I didn't mean "can it exist," I mean "can it be admitted even if it does exist"

Nurse is the one who makes the entry, she has person knowledge and the duty etc. No problem there.

Doctor is the one from whom the statement came and offered for its truth. Problem?

Is that OK because the general exemption covers it?

Yes, this would be fine. This would not be hearsay within hearsay, because there is only one level. The fact that the nurse can't remember who the doctor was does not take the statement out of the business records exception.

[Puffman1234]

Does does hearsay within hearsay never apply to any document that qualifies under the business records exemption?

E.g. Nurse is sure she made a notation about what a doctor said to her, but she can't remember who that doctor was.

You can have hearsay within hearsay in a business record. Someone can be under a duty to write down statements made by someone outside of the business. E.g. If a nurse writes down statements made by victim.

Thanks. Sorry, I didn't mean "can it exist," I mean "can it be admitted even if it does exist"

Nurse is the one who makes the entry, she has person knowledge and the duty etc. No problem there.

Doctor is the one from whom the statement came and offered for its truth. Problem?

Is that OK because the general exemption covers it?

Fairly certain that's ok. Statements from multiple different people in a single business record can all fall under the business records exception so long as all the people making the statements are acting in the ordinary course of business in making those statements and at least the first person has personal knowledge of the events. So a doctor with knowledge could tell another doctor who could tell the nurse and she could write that whole sequence of events into her log and it would all fall under the business records exception. I think in that kind of question they'd have to just tell you this is how the business runs because otherwise I don't think it would be fair to expect us to know something like that.

[runthetrap1990]

Is there any clear way to distinguish a question that is probing on "accord & satisfaction" vs. just a plain old "modification"? I understand the Black Letter between the two but seem to not be able to distinguish them in fact patterns. There were a few questions on the Barbri Simulated MBE that I got wrong because I thought the question was asking about modification when it really was asking about A&S.

[ConfusedL1]

When can you "preserve" your right for a waived condition?

I just did a problem where a buyer didn't close on a house and then closed later, and apparently he is entitled to relief for some money he spent during that time for housing (that the seller didn't know about). The answer explained that he "reserved" his right at closing, but didn't he waive the term when did didn't close at the date both parties were supposed to?

[Toubro]

Is there any clear way to distinguish a question that is probing on "accord & satisfaction" vs. just a plain old "modification"? I understand the Black Letter between the two but seem to not be able to distinguish them in fact patterns. There were a few questions on the Barbri Simulated MBE that I got wrong because I thought the question was asking about modification when it really was asking about A&S.

Yeah, I got mixed up here too.

I try to remember A&S as being triggered by a a "good faith dispute," usually about the amount of money owed by one party to another or the nature of performance. That's worked for me so far, but then on the simulated MBE the A&S question didn't fit that.

I think you can usually figure out what they're looking for based on the answer choices though:

For A&S, they're usually testing the ability to sue on the original contract and whether there was a good faith dispute, or whether the check sent with a lower amount clearly indicated that payment was "in full satisfaction." With modifications, the answer choices usually talk about "good faith" (UCC), "fair and equitable" (common law), and "(un) enforceable because not in writing."

[ThisMan]

Is there any clear way to distinguish a question that is probing on "accord & satisfaction" vs. just a plain old "modification"? I understand the Black Letter between the two but seem to not be able to distinguish them in fact patterns. There were a few questions on the Barbri Simulated MBE that I got wrong because I thought the question was asking about modification when it really was asking about A&S.

These always get me too. I think you're most likely facing a modification question when both sides still have to complete performance. When one side has already completed their obligation and is awaiting payment/return performance, then you're likely looking at A&S.

[dlrbfl]

When nation-wide service of process is permitted (e.g., federal interpleader statute), does that mean that the state federal court can basically ignore personal jurisdiction over the D and force him to be sued in that state?

[Puffman1234]

When nation-wide service of process is permitted (e.g., federal interpleader statute), does that mean that the state federal court can basically ignore personal jurisdiction over the D and force him to be sued in that state?

I believe so, as long as the parties have minimum contacts with the United States. It works in conjunction with Rule 4(k)(1)(C).

[champloo]

hey guys. i know that when a court decides on its own to order a new trial it needs to specify its reasons for doing so. i think i read from somewhere (tbh i completely forgot where i read it and in what circumstances) that not all unilaterally made court decisions must specify a reason for doing so. if this is indeed true, which orders are courts not required to specify its reason to rule a certain way (and which orders must a court specify its reasons)?
tyia!

[liebs378]

For felony murder I believe there is 2 theories of liability for a finding of felony murder.

1) agency theory: the felon is guilty for only those deaths that are caused by himself or an agent of a felon during the commission of an inherently dangerous felony

2) proximate theory: felon is guilty of those deaths that are foreseeable as a result of the commission of the inherently dangerous crime.

Do we know which theory applies for the MBE?

[Bass]

For felony murder I believe there is 2 theories of liability for a finding of felony murder.

1) agency theory: the felon is guilty for only those deaths that are caused by himself or an agent of a felon during the commission of an inherently dangerous felony

2) proximate theory: felon is guilty of those deaths that are foreseeable as a result of the commission of the inherently dangerous crime.

Do we know which theory applies for the MBE?

Agency, agency is the majority position according to Themis.

[RavenAgain]

Two questions in relation to tort:

1. The tort of direct NIED does it require "zone of danger", and the bystander does not have a zone but presence?
2. How do I determine how big the zone is?

[ConfusedL1]

If a HOA has a long standing rule and a new zoning rule comes out that toally contradicts it, does the new zoning rule preempt it?

[pancakes3]

Two questions in relation to tort:

1. The tort of direct NIED does it require "zone of danger", and the bystander does not have a zone but presence?
2. How do I determine how big the zone is?

bystander has to be in the zone but an interested bystander (family member) can be present and not in the immediate zone

the zone extends to where you're "in immediate risk of danger" and "frightened by the risk of the harm"

If a HOA has a long standing rule and a new zoning rule comes out that toally contradicts it, does the new zoning rule preempt it?

No.

[ConfusedL1]

I have a statement from some one who is now unavailable identifying a defendant as a drug seller and sold her drugs (let's say it's clearly hearsay). Is there any way for me to get it in as a prior consistent statement or as prior identification?

My understanding is that there is no way, but maybe I can get it in as prior statement if he's impeached? I.D. seems like no way because of the hearsay issue.

[BulletTooth]

I have a statement from some one who is now unavailable identifying a defendant as a drug seller and sold her drugs (let's say it's clearly hearsay). Is there any way for me to get it in as a prior consistent statement or as prior identification?

My understanding is that there is no way, but maybe I can get it in as prior statement if he's impeached? I.D. seems like no way because of the hearsay issue.

Yes, it seems like it would be tough to get it in. You wouldn't be able to get it in under 801(d)(1) because the declarant cannot testify and be subject to cx. But if one of the parties was able to admit a statement that the declarant made that was inconsistent with the statement you want to use, then you could get the statement in to impeach.

For instance:
Opposing counsel brings in declarant's statement that B was the drug dealer based on excited utterance (assume for whatever reason that the excited utterance exception would apply here).
You could now bring in the declarant's statement that D was the drug dealer to impeach the declarant with a prior inconsistent statement (FRE 806), but not to prove the truth of the matter asserted.

It's a weird example, and I'm sure there are better ones. But it's definitely possible to use the statement to impeach.

[TheWalrus]

When does something violate the due process clause?

[foundingfather]

When does something violate the due process clause?

There are many ways that the government can violate the due process clause. Essentially, the Bill of Rights protects a person's (i) procedural due process rights, (ii) that person's substantive due process rights, and (iii) ensures that people have the equal protection of the law.

Procedural due process protects against the government's taking of life, liberty, or property "without due process of law." Usually, this means that a person is entitled to some sort of government procedure, like a (i) notice and (ii) a hearing, before the government can take away that right. In other words, the government can't just arbitrarily take away your life, liberty of property without some form of procedure to make sure that the taking of those rights is fair.

Substantive due process rights protect certain fundamental rights, like the right to privacy or the right to free speech. Government actions that impede on a person's fundamental rights are subject to strict scrutiny. There is more to this, like government action that is reviewed under intermediate scrutiny or the rational basis test.

There is also the equal protection clause of the 14th amendment, which textually applies to the states but is kind of attributed to the federal government, too, through the 5th amendment's due process clause. The difference between the 5th and 14th amendment is basically that the 5th amendment due process clause applies to the federal government, and the 14th amendment's due process clause applies to state government.

[InterAlia1961]

When does something violate the due process clause?

There are two Due Process Clauses. One is in the Fifth Amendment, which applies to the federal government and applies to the States via incorporation into the Fourteenth Amendment. Due process includes both procedural and substantive due process. When procedural due process is implicated, it will almost always involve the right to be heard. In deciding whether the right to procedural due process has been violated, the court will consider (1) the nature of the right at stake, (2) the value of the procedural protections already in place, and (3) the interest of the government in effective and efficient administration of government.

Substantive due process issues arise where because of government legislation, a fundamental right has been burdened. When this occurs, a court will invoke the strict scrutiny standard of review. Under this standard, the government bears the burden of showing that the law is narrowly tailored to serve a compelling government interest, and the law is the least restrictive means to achieve the government's interest.

Thanks for an opportunity to write a rule statement.

[CardozoLaw09]

How many of yall, like myself, went with answer choice (A) on question 13 of the mixed subject set 2?