Themis Bar Review Hangout - July 2014 Exam Forum

[TooManyLoans]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

[northwood]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

I think its admissible here because it is being used to show motive to commit the arson ( burn the house to make money). not sure exacgtly why the threat is admissible, but to me it seems like it should be ( perhaps to show intent in causing the house to burn or another MIMIC- motive, intent lack of mistake, identify the perp, or conformity with a common plan)

[jigglypuffdreams]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

The duplicate insurance is admissible not to prove fault, but to prove motive or intent. "Why would that guy burn down his house?" "He has double insurance on it." It's not admitted to show that he burned down the house.

Specifically, FRE 411 says "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control."

So here the double insurance is admitted for another purpose, i.e., the motive.

[TooManyLoans]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

The duplicate insurance is admissible not to prove fault, but to prove motive or intent. "Why would that guy burn down his house?" "He has double insurance on it." It's not admitted to show that he burned down the house.

Specifically, FRE 411 says "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control."

So here the double insurance is admitted for another purpose, i.e., the motive.

Thank you.

[Kiwi917]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

The duplicate insurance is admissible not to prove fault, but to prove motive or intent. "Why would that guy burn down his house?" "He has double insurance on it." It's not admitted to show that he burned down the house.

Specifically, FRE 411 says "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control."

So here the double insurance is admitted for another purpose, i.e., the motive.

Thank you.

I remember getting this one wrong... The MIMIC explanations always make sense in hindsight, but I find it really hard to spot them unless the answer clearly suggests something like "it is admissible as evidence of motive." It's one of those rules I tend to forget about. Interesting thing is that it doesn't even have to be duplicate insurance - there was another question where it was simply the fact that a person took out a policy before the property was destroyed. I think in that one the building had lost value and the policy was worth more than the property, which is enough to suggest a motive for destroying the property.

[numbertwo88]

I'm so sick of studying - I feel defeated

[splitmuch]

26. (Question ID#4206)
A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately after the accident, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the pickup truck was never located. In the interim, however, the witness had suffered a brain injury and no longer remembered any of the events from the date of the accident. At trial, the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he had no memory of the events described in the statement, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.

How should the judge rule?
A. The judge should admit both the photo and the statement into evidence as exhibits
.B. The judge should admit the photo, but not the statement, into evidence as an exhibit.
C. The judge should admit the statement, but not the photo, into evidence as an exhibit.
D. The judge should not admit the photo or the statement into evidence as exhibits

Themis says D is right. I get all the reasoning regarding past recollection recorded (can be read into evidence but document itself cannot be admitted).

My question is why doesn't the statement, given "Immediately after the accident," also qualify for the 803(1) present sense impression exception?

This is a criminal case. The evidence is offered against D and testimonial in nature. The witness is now unavailable to testify, but the D had no prior chance to examine him, so I think it violates the Confrontational clause. Otherwise I feel like it should get in.

This explanation makes the most sense. With how the courts have interpreted the emergency testimonial distinction I don't think it is 100% clearly testimonial but it makes sense.

[splitmuch]

Contacted Themis about it. Their response was that it may qualify as a present sense impression but that doesn't mean it can be offered for the truth of the matter asserted...A response which is now making me question the course I just took.

[Tanicius]

Contacted Themis about it. Their response was that it may qualify as a present sense impression but that doesn't mean it can be offered for the truth of the matter asserted...A response which is now making me question the course I just took.

That makes literally no sense. Can you copy paste the message they sent to you?

[splitmuch]

Contacted Themis about it. Their response was that it may qualify as a present sense impression but that doesn't mean it can be offered for the truth of the matter asserted...A response which is now making me question the course I just took.

That makes literally no sense. Can you copy paste the message they sent to you?

I know:

"The statement may be an exception to the hearsay rule as a present sense impression, but it cannot be admissible for the truth of the matter asserted. So, it cannot be admissible for the purposes of identifying the driver of the truck as the person liable. Does that make sense? Let me know if this helps!"

[Bildungsroman]

Contacted Themis about it. Their response was that it may qualify as a present sense impression but that doesn't mean it can be offered for the truth of the matter asserted...A response which is now making me question the course I just took.

That makes literally no sense. Can you copy paste the message they sent to you?

I know:

"The statement may be an exception to the hearsay rule as a present sense impression, but it cannot be admissible for the truth of the matter asserted. So, it cannot be admissible for the purposes of identifying the driver of the truck as the person liable. Does that make sense? Let me know if this helps!"

Am I retarded, or does this not make any sense? I thought that hearsay exceptions mattered only when you were attempting to introduce something for the truth of the matter. Hence why 801 defines hearsay in relevant part as "a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement." Saying something is admissible under a hearsay exception but not to prove the truth of the matter is meaningless.

Evidence is my weak MBE subject since I never took it in law school, but I'm having trouble figuring out why this wouldn't qualify as a present sense impression.

[Rirruto]

That's weird. They chose a poor word. In context, it's not really even that close to being a present sense impression, but they put the word "immediately" in there. As they should know, when you're doing MBE questions you look for stuff like that to dog whistle you onto the issue. They meant "when it was fresh in his mind" but chose their wording poorly.

I can see how people would get messed up on that.

[splitmuch]

Contacted Themis about it. Their response was that it may qualify as a present sense impression but that doesn't mean it can be offered for the truth of the matter asserted...A response which is now making me question the course I just took.

That makes literally no sense. Can you copy paste the message they sent to you?

I know:

"The statement may be an exception to the hearsay rule as a present sense impression, but it cannot be admissible for the truth of the matter asserted. So, it cannot be admissible for the purposes of identifying the driver of the truck as the person liable. Does that make sense? Let me know if this helps!"

Am I retarded, or does this not make any sense? I thought that hearsay exceptions mattered only when you were attempting to introduce something for the truth of the matter. Hence why 801 defines hearsay in relevant part as "a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement." Saying something is admissible under a hearsay exception but not to prove the truth of the matter is meaningless.

Evidence is my weak MBE subject since I never took it in law school, but I'm having trouble figuring out why this wouldn't qualify as a present sense impression.

No, it makes no sense.

She has responded again.

"I apologize, I think I misread your question earlier.<<my thoughts: doesn't explain why your answer was idiotic>> The actual document itself cannot be admitted even though it is an exception to hearsay as a present sense impression. Under the Past Recollection Recorded doctrine, the statement may be read into evidence but may not be submitted as an exhibit. Does that make more sense? "

Of course, this doesn't make much sense either. There is no rule that a present sense impression cannot be admitted if it is written instead of spoken - is there?

As to the confrontation clause explanation earlier...wouldn't that also apply to a past recollection recorded even being read into evidence?

My working assumption is this was a problem written by themis that thought it was only testing the past recollection recorded rule and inadvertently, by writing immediately instead of, say, 30 minutes later, made it also qualify as a PSI.

[splitmuch]

That's weird. They chose a poor word. In context, it's not really even that close to being a present sense impression, but they put the word "immediately" in there. As they should know, when you're doing MBE questions you look for stuff like that to dog whistle you onto the issue. They meant "when it was fresh in his mind" but chose their wording poorly.

I can see how people would get messed up on that.

I'm not sure it's "not close." I was taught that while there is no hard time frame, a 10-15 min limit was a good rule of thumb. I think it's conceivable the cops could get there and get a description in that time frame.

[bport hopeful]

Im gonna go on the meanest bender after this.

[Bildungsroman]

That's weird. They chose a poor word. In context, it's not really even that close to being a present sense impression, but they put the word "immediately" in there. As they should know, when you're doing MBE questions you look for stuff like that to dog whistle you onto the issue. They meant "when it was fresh in his mind" but chose their wording poorly.

I can see how people would get messed up on that.

I don't understand what this post is saying. The word "immediately" means it qualifies for the present sense impression exception, at least in terms of satisfying the temporal requirement.

[TooManyLoans]

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned, and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of

Answer: Both admissible.

So I guess only car insurance is excluded as against public policy to prove fault?

The duplicate insurance is admissible not to prove fault, but to prove motive or intent. "Why would that guy burn down his house?" "He has double insurance on it." It's not admitted to show that he burned down the house.

Specifically, FRE 411 says "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control."

So here the double insurance is admitted for another purpose, i.e., the motive.

Thank you.

I remember getting this one wrong... The MIMIC explanations always make sense in hindsight, but I find it really hard to spot them unless the answer clearly suggests something like "it is admissible as evidence of motive." It's one of those rules I tend to forget about. Interesting thing is that it doesn't even have to be duplicate insurance - there was another question where it was simply the fact that a person took out a policy before the property was destroyed. I think in that one the building had lost value and the policy was worth more than the property, which is enough to suggest a motive for destroying the property.

Yea, in hindsight it makes perfect sense but using it to prove intent is so close to using it to prove fault here. If it were an essay question, it wouldn't have been a problem.

[puttycake]

Im gonna go on the meanest bender after this.

I need to take up drinking.

God, now we're moving to a new apartment on the Saturday after the exam. I would appreciate it if someone just shot me now. I won't mind. I'll leave you something in my will.

[Rirruto]

That's weird. They chose a poor word. In context, it's not really even that close to being a present sense impression, but they put the word "immediately" in there. As they should know, when you're doing MBE questions you look for stuff like that to dog whistle you onto the issue. They meant "when it was fresh in his mind" but chose their wording poorly.

I can see how people would get messed up on that.

I don't understand what this post is saying. The word "immediately" means it qualifies for the present sense impression exception, at least in terms of satisfying the temporal requirement.

Read the question again except instead of immediately read "when it was fresh in his mind." If they had put that in, there wouldn't be any real controversy.

Putting "immediately" has confused people (as you can see through the last few posts). They aren't testing PSI with the question, and it is extremely unlikely that absent their putting in "immediately" it would qualify. Just think about that. If this is a PSI, so is almost every comment made to the cops at a crime scene. I think we all understand that that isn't how it works.

Hope my posts aren't confusing. And Themis has other questions like this. I'm thinking of the one where they say the husband is "upset" but then go on to say it's not an excited utterance. Sometimes, they use poor wording and it screws people up.

[Gotti]

It's not a present sense impression. Present sense impression is more like "damn, did you see that car run through the light?" as it was happening or literally RIGHT after (within seconds). It's always a verbal statement because of the timing requirement. So, a signed written statement like this one isn't a "present sense impression" but it can be used as a past recollection recorded if the witness can't remember, but it can only be admitted into evidence by the adverse party.

[splitmuch]

It's not a present sense impression. Present sense impression is more like "damn, did you see that car run through the light?" as it was happening or literally RIGHT after (within seconds). It's always a verbal statement because of the timing requirement. So, a signed written statement like this one isn't a "present sense impression" but it can be used as a past recollection recorded if the witness can't remember, but it can only be admitted into evidence by the adverse party.

First of all, there have been present sense impressions upheld made up to 27 minutes after the fact. Second, typewritten meeting notes ten minutes after an meeting have been held to be present sense impressions, so it's not always verbal statements. Third, even Themis is saying its a present sense impression, but just saying "that doesn't make it admissible" which doesn't make any sense.

[Bildungsroman]

That's weird. They chose a poor word. In context, it's not really even that close to being a present sense impression, but they put the word "immediately" in there. As they should know, when you're doing MBE questions you look for stuff like that to dog whistle you onto the issue. They meant "when it was fresh in his mind" but chose their wording poorly.

I can see how people would get messed up on that.

I don't understand what this post is saying. The word "immediately" means it qualifies for the present sense impression exception, at least in terms of satisfying the temporal requirement.

Read the question again except instead of immediately read "when it was fresh in his mind." If they had put that in, there wouldn't be any real controversy.

Putting "immediately" has confused people (as you can see through the last few posts). They aren't testing PSI with the question, and it is extremely unlikely that absent their putting in "immediately" it would qualify. Just think about that. If this is a PSI, so is almost every comment made to the cops at a crime scene. I think we all understand that that isn't how it works.

Hope my posts aren't confusing. And Themis has other questions like this. I'm thinking of the one where they say the husband is "upset" but then go on to say it's not an excited utterance. Sometimes, they use poor wording and it screws people up.

Alright, what words can I sub in to make other questions easier? Can I read "defendant" instead of "witness" in questions so that more statements are admissible as opposing party statements?

[jigglypuffdreams]

So, just curious, has anyone tried out the "100 extra practice questions" at the end of the Multistate Workbook? I just tried a few of them and I can't tell if they're insanely difficult or I'm just losing steam.

[Bildungsroman]

For people whose states use the MEE, was Neal Newman (commercial paper) just a bad lecturer, or the worst lecturer?

[mmmnnn]

So congress can neither expand nor limit the Supreme Court's original jurisdiction by statute. Congress can limit the Court's appellate jurisidiction, however. Can Congress expand the Court's appellate jurisdiction?

Congress enacted a statute providing that persons may challenge a state energy law on the ground that it is in conflict with the federal Constitution in either federal or state court. According to this federal statute, any decision by a lower state court upholding a state energy law against a challenge based on the federal Constitution may be appealed directly to the United States Supreme Court. The provisions of this statute that authorize direct United States Supreme Court review of specified decisions rendered by lower state courts are


Constitutional, because congressional control over questions of energy usage is plenary.
Constitutional, because Congress may establish the manner in which the appellate jurisdiction of the United States Supreme Court is exercised.
Unconstitutional, because they infringe on the sovereign right of states to have their supreme courts review decisions of their lower state courts.
Unconstitutional, because under Article III of the Constitution the United States Supreme Court does not have authority to review directly decisions of lower state courts.

Answer choice B is correct. The Supreme Court has the power to review state court decisions and statutes to ensure conformity with the U.S. Constitution "and under such regulations as the Congress shall make." The two means of establishing Supreme Court jurisdiction are (i) direct appeal and (ii) certiorari (discretionary review). Answer choice A is incorrect because energy questions do not create a special right. Answer choice C is incorrect because state supreme courts do not have such sovereign rights. The Supreme Court may have the power to review lower state court decisions. Answer choice D is incorrect because Congress can and has eliminated certain types of appeals, pursuant to Article III, Section 2.

Yes, Congress has the power to eliminate appeals, but here they're granting SCOTUS appellate jurisdiction it normally wouldn't have, right? Compare:

A federal statute provides that the United States Supreme Court may review any case filed in a United States Court of Appeals, even if that case has not yet been decided by the court of appeals. The Environmental Protection Agency (EPA), a federal agency, issued an important environmental rule. Before enforcement of the rule began, companies that would be adversely affected filed a petition for review of the rule in a court of appeals, arguing that it exceeded the statutory authority of the EPA. The companies made no constitutional claim. A statute specifically provides for direct review of EPA rules by a court of appeals without any initial action in a district court. The companies have filed a petition for a writ of certiorari in the Supreme Court requesting immediate review of this case before a decision by the court of appeals. The EPA asks the Supreme Court to dismiss the petition on jurisdictional grounds. What is the best argument in support of the EPA's position?


The case is not within the original jurisdiction of the Supreme Court as defined by Article III, and it is not a proper subject of that court's appellate jurisdiction because it has not yet been decided by any lower court.
The case is appellate in nature, but is beyond the appellate jurisdiction of the Supreme Court, because Article III states that its jurisdiction extends only to cases arising under the Constitution.
Article III precludes federal courts from reviewing the validity of a federal agency rule in any proceeding other than an action to enforce the rule.
Article III provides that all federal cases, except those within the original jurisdiction of the Supreme Court, must be initiated by an action in a federal district court.

Answer choice A is correct. Article III, section 2 gives the Supreme Court original jurisdiction over cases affecting Ambassadors, other public ministers and Consuls and those in which a state is a party. The case in these facts does not fall into any of those categories, so it is not within the original jurisdiction of the Supreme Court. Article III also gives the Supreme Court appellate jurisdiction over all other cases arising under the Constitution, act of Congress, or treaty. Congress may not expand the Supreme Court’s jurisdiction by statute. Because the case does not fall within the Supreme Court’s original jurisdiction, it may not hear the case until there is a decision from a lower court to review. Answer choice B is incorrect because the Supreme Court’s appellate jurisdiction is not limited to cases arising under the Constitution. Answer choice C is incorrect because Article III imposes no such limitation on a federal court’s review of federal agency rules. Answer choice D is incorrect because Article III does not include such a provision. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.