July 2014 New York Bar Exam Forum

[camptx]

I think I found some mistakes on the Barbri NYMC evidence section, if any of you are interested. Also, please correct me if I'm wrong.

#1: I don't think a police report falls under the business record exception to hearsay when used against a criminal defendant. Also, see page 79 of lecture handout on evidence.
#4: Under the admission by party opponent exception to hearsay, NY doesn't recognize agent's "statements regarding subject within the scope of his/her employment" when they are sought to admitted against the employer. NY only recognizes statements the agent/employee was authorized to make.
Answer to #7: States that NY excludes evidence of subsequent remedial measures in SL cases involving design defects, but the Evidence handout on page specifically says NY allows this type of evidence in SL cases for design defects.

Again, please correct me if I'm wrong.

[prs362]

I think I found some mistakes on the Barbri NYMC evidence section, if any of you are interested. Also, please correct me if I'm wrong.

#1: I don't think a police report falls under the business record exception to hearsay when used against a criminal defendant. Also, see page 79 of lecture handout on evidence.
#4: Under the admission by party opponent exception to hearsay, NY doesn't recognize agent's "statements regarding subject within the scope of his/her employment" when they are sought to admitted against the employer. NY only recognizes statements the agent/employee was authorized to make.
Answer to #7: States that NY excludes evidence of subsequent remedial measures in SL cases involving design defects, but the Evidence handout on page specifically says NY allows this type of evidence in SL cases for design defects.

Again, please correct me if I'm wrong.

#1: I had the exact same thought. Well, not the exact same. A police report under the public records exception couldn't be used against a criminal defendant, but it could if it qualified as a business record (I believe). However, I don't necessarily think this meets the business records exception, because the exception requires personal knowledge of persons within the business (here, the police). The officer receives the information from Ellen (I think), and she does not qualify. I think the real correct answer would be double hearsay, with the outside statement (the report in general) qualifying as a business record, and the inside statement qualifying as a party admission. But that wasn't an answer choice.

#4: I also agree, with a slight alteration. NY also recognizes statement from employees with high enough of a position (terrible wording on my part, sorry) that they could be presumed to have authority. This guy was a director, and therefore probably qualified. The problem is that the answer choice, as you correctly noted, cited the federal rule, not the NY rule.

I don't mean to state all of that so declaratively. Those are just my thoughts. A friend pointed out to me that NY allows accident reports for business records, but I think that is referring to the inter-corporate type of accident reports traditionally banned by federal law, and not necessarily dispensing with the personal knowledge from person within the business requirement.

I submitted my thought process on question one to barbri.

Thoughts?

[camptx]

I think you are right with respect to #1. Though I do remember my evidence professor saying most courts won't admit police reports under the business record exception, as they want the arresting officer to testify in person. I submitted a question to BARBRI as well.

Yeah, that was my problem with #4. He could arguably have the authority to speak due to his "executive-like" position, but I was puzzled when I didn't see an answer referencing this. Even more puzzled after reading the answer. I sent BARBRI a question on that one; the answer explanation directly contradicts the handout/lecture.

Yeah, I did see that regarding the accident reports wrt corporations. Under the FRE, reports made in anticipation of litigation (often accident reports) are outside the scope of the business records exception. I'm pretty sure NY allows these reports, even if made in anticipation of litigation, if they meet all other requirements for exception.

[greenjuice]

It would be awesome if you guys could let us know what Barbri says. I was also confused b/c I learned something similar to camptx, that you couldn't evade the requirements of the pub records exception by trying to get an incriminating report under the biz records exception. I thought that was the case here.

Guess I need to read the CMR more closely instead of relying on what I learned in class...

[nygrrrl]

I think you are right with respect to #1. Though I do remember my evidence professor saying most courts won't admit police reports under the business record exception, as they want the arresting officer to testify in person.

Same here.

Yeah, that was my problem with #4. He could arguably have the authority to speak due to his "executive-like" position, but I was puzzled when I didn't see an answer referencing this. Even more puzzled after reading the answer.

I was so frustrated after doing that set, I just went to bed. I agee with Green - it would be great if you guys could let us know what Barbri says and I'll also see if any of my friends emailed/got responses.

[shock259]

I'm doing Kaplan, but I've also noticed there are always 1 or 2 questions per section that are either wrong or seriously debatable. I usually just swear at Kaplan and move on, knowing that I'm right.

[obiwankenobi]

has anyone still not received an email confirming that their certificate of attendance was received???

[lawyerwannabe]

has anyone still not received an email confirming that their certificate of attendance was received???

Ya. Got my seat location confirmation saying that it was still my responsibility to make sure that my school delivered the certificate of attendance to them on time.

[JenDarby]

has anyone still not received an email confirming that their certificate of attendance was received???

Ya. Got my seat location confirmation saying that it was still my responsibility to make sure that my school delivered the certificate of attendance to them on time.

Same here. I have considered calling my school regarding the certificate.

[obiwankenobi]

has anyone still not received an email confirming that their certificate of attendance was received???

Ya. Got my seat location confirmation saying that it was still my responsibility to make sure that my school delivered the certificate of attendance to them on time.

Same here. I have considered calling my school regarding the certificate.

I called and emailed the registrar at my school (Georgetown), but no response yet... grrrr just another thing to worry about when studying for the bar.

[nygrrrl]

has anyone still not received an email confirming that their certificate of attendance was received???

Ya. Got my seat location confirmation saying that it was still my responsibility to make sure that my school delivered the certificate of attendance to them on time.

Same here. I have considered calling my school regarding the certificate.

[JenDarby]

Alright so I just called out "assistant dean of academic records" and he confirmed that they had received my forms and they were sent to the bar examiners. It looks like the confirmation emails could just be sent out at a delay.

[obiwankenobi]

Alright so I just called out "assistant dean of academic records" and he confirmed that they had received my forms and they were sent to the bar examiners. It looks like the confirmation emails could just be sent out at a delay.

Mind saying which school you go to? Thanks!

[nygrrrl]

Alright so I just called out "assistant dean of academic records" and he confirmed that they had received my forms and they were sent to the bar examiners. It looks like the confirmation emails could just be sent out at a delay.

TY!

[JenDarby]

Alright so I just called out "assistant dean of academic records" and he confirmed that they had received my forms and they were sent to the bar examiners. It looks like the confirmation emails could just be sent out at a delay.

Mind saying which school you go to? Thanks!

Fordham

NP nygrrrl!

Edit: well, I just recieved the email confirming receipt and approval of my bar exam proofs.

[shock259]

I just got my proofs confirmation email today. Attended Columbia. Not sure when the school sent the forms in.

[obiwankenobi]

has anyone still not received an email confirming that their certificate of attendance was received???

For anyone at Georgetown... I just called and they told me they are still processing about 100 certificates.

[nygrrrl]

Edit: well, I just recieved the email confirming receipt and approval of my bar exam proofs.

Same.

[camptx]

I think you are right with respect to #1. Though I do remember my evidence professor saying most courts won't admit police reports under the business record exception, as they want the arresting officer to testify in person.

Same here.

Yeah, that was my problem with #4. He could arguably have the authority to speak due to his "executive-like" position, but I was puzzled when I didn't see an answer referencing this. Even more puzzled after reading the answer.

I was so frustrated after doing that set, I just went to bed. I agee with Green - it would be great if you guys could let us know what Barbri says and I'll also see if any of my friends emailed/got responses.

As for a Police Report being admitted against a crim defendant under the business record exception, the Barbri person mistakenly pointed me to the exception for accident reports in NY. However, the lecture is clear that accident reports refer to company reports made in anticipation of litigation. NY allows these under the business records exception if it meets everything else, but the FRE exempt documents made in anticipation of litigation (e.g., corp accident reports) from the business records exception.

Received a more helpful response regarding vicarious admissions by employees. She said that NY only allows statements expressly authorized or if the employee is high enough in the hierarchy of the company to have "speaking authority." Who the heck knows how high up you have to be.

[prs362]

I think I found some mistakes on the Barbri NYMC evidence section, if any of you are interested. Also, please correct me if I'm wrong.

#1: I don't think a police report falls under the business record exception to hearsay when used against a criminal defendant. Also, see page 79 of lecture handout on evidence.
#4: Under the admission by party opponent exception to hearsay, NY doesn't recognize agent's "statements regarding subject within the scope of his/her employment" when they are sought to admitted against the employer. NY only recognizes statements the agent/employee was authorized to make.
Answer to #7: States that NY excludes evidence of subsequent remedial measures in SL cases involving design defects, but the Evidence handout on page specifically says NY allows this type of evidence in SL cases for design defects.

Again, please correct me if I'm wrong.

#1: I had the exact same thought. Well, not the exact same. A police report under the public records exception couldn't be used against a criminal defendant, but it could if it qualified as a business record (I believe). However, I don't necessarily think this meets the business records exception, because the exception requires personal knowledge of persons within the business (here, the police). The officer receives the information from Ellen (I think), and she does not qualify. I think the real correct answer would be double hearsay, with the outside statement (the report in general) qualifying as a business record, and the inside statement qualifying as a party admission. But that wasn't an answer choice.

So I received the following response:

Note, in fact patterns involving police reports where there are certain circumstances where the police report can qualify as a business record. Generally, witnesses, or even parties are not under a business duty to convey information to the police. And, a report containing their statements cannot qualify as a business record but it may admissible under another exception.

(CMR - Evidence - PGS 39-40)

In question NY MC Question #1, the report written by the police officer and the personal knowledge requirement is satisfied because the police officer wrote the report based on knowledge he became privy to and he is under a duty to transmit such matters as a police officer.

As to the last part, I still think that is completely wrong. Writing something based on "knowledge he became privy to," when he only became privy to it because someone else told him, is basically the opposite of personal knowledge. Am I completely missing something?

Received a more helpful response regarding vicarious admissions by employees. She said that NY only allows statements expressly authorized or if the employee is high enough in the hierarchy of the company to have "speaking authority." Who the heck knows how high up you have to be.

I think the main issue with that Q&A is that the answer cited the federal rule, not the NY rule.

[duckpunchingmaniac]

I didn't even know Javits was an option for people out-of-state until I heard about others getting it if they responded almost immediately. Kinda bummed since I'm paying way more than I should for two nights at a hotel in Albany when I could have stayed in New York for free.

Oh, and the whole driving six and a half hours from where I live in DC blows too. I'm taking NJ as my plan B bar, so I have to be able to get there, hence driving. And rent a car since I don't have one. And apparently NJ doesn't say where the testing site is until after July 1, which seems kinda crazy, but at least I can just drive back without paying for another hotel?

I'm taking Kaplan. After listening to Fromm for day after day of MBE foundation lectures, I was both happy and deflated at the same time to see he does the NY distinctions lectures for every single MBE subject. At least he doesn't talk about his grandma in the distinctions videos.

Fromm is my favorite! He gets old after a while, like anyone will, but he does have a distinct energy that most of the other lecturers lack.

I like Bracci, but he does this weird thing when he shifts the weight around on his feet (standing for an extended period sucks, I know), on 1.5 speed it looks vaguely threatening, like he's coming after you.

Anyway, after the Evidence dude who kept saying "Ladies and Gentlemen" every other sentence, and the weird Torts dude, I'm always happy to get a Distinctions video with Fromm to liven me up. I actually really liked the Roosevelt dude for Con Law, hopefully the rest aren't as soporific as the Evidence guy.

[duckpunchingmaniac]

At least he doesn't talk about his grandma in the distinctions videos.

Actually, I could've sworn I heard some story about his grandma in one of the distinction videos. I know it wasn't the Foundation because I didn't watch those.

[JenDarby]

The only Kaplan lecturer I have REALLY disliked so far is the Torts guy, and that's mainly because even at 1.5x speed he was still unbearably slow.

[duckpunchingmaniac]

The only Kaplan lecturer I have REALLY disliked so far is the Torts guy, and that's mainly because even at 1.5x speed he was still unbearably slow.

I actually thought he was a little funny but yeah he sounded drunk on regular.

Kermit is my favorite so far, found him very endearing.

btdubs: how many of you Kaplan people did the MBE foundation? I didn't have time due to moving (I know, everybody's moving and shit, but I really didn't). Was it that useful?

[JenDarby]

I did evidence and property and they were both a huge waste of time. They give a very skeletal overview of rules and then literally walk through multiple choice questions and explain why certain answers are incorrect. I hadn't spent muh time reviewing flash cards yet, but for me those flash cards are way more helpful than the foundation lectures. OTOH, the guy who leads my Kaplan class said that the foundations were one of his favorite things when he did the bar. I think it just depends - I am not making one sheets since I know it's not a good use of my time.