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A defendant is charged with aggravated assault on a game warden. The defendant testified that, when he was confronted by the warden, who was armed and out of uniform, the defendant believed the warden was a robber and shot in self-defense. The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense.

The witness's testimony is

A. admissible, as evidence of the defendant's untruthfulness.
B. admissible, as evidence that the defendant did not act in self-defense on this occasion.
C. inadmissible, because it is improper character evidence.
D. inadmissible, because it is irrelevant to the defense the defendant raised.



The answer is C and for the life of me I can't figure out why this isn't admissible under MIMIC. I feel like I've seen this one a millino times and the answer has always been B.

MoneyMay wrote:A defendant is charged with aggravated assault on a game warden. The defendant testified that, when he was confronted by the warden, who was armed and out of uniform, the defendant believed the warden was a robber and shot in self-defense. The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense.

The witness's testimony is

A. admissible, as evidence of the defendant's untruthfulness.
B. admissible, as evidence that the defendant did not act in self-defense on this occasion.
C. inadmissible, because it is improper character evidence.
D. inadmissible, because it is irrelevant to the defense the defendant raised.



The answer is C and for the life of me I can't figure out why this isn't admissible under MIMIC. I feel like I've seen this one a millino times and the answer has always been B.

The answer can't be B, because then you would be offering the evidence solely to show the defendant acted in accordance in the present situation. That's an impermissible way to use prior acts against a defendant.

This is really one where process of elimination gets you C. We know it's not A because the defendant hasn't opened the door to character evidence of his untruthfulness, so that's an impermissible use, and even if he had it's an impermissible way to impeach the defendant. We know it's not D because it's obviously relevant - relevance has a very low bar and we're definitely over it here, since this evidence would tend to make a material fact more or less likely. For the reasons above, it's not B either. So that leaves us with C.

MIMIC doesn't work for something that generic. The default rule is you can't bring in past conduct to prove guilt in the particular case. What specific exception do you think applies?

An example of where MIMIC would apply would be the bank robber who wears a chicken mask. You could introduce evidence of prior robberies where he was linked to the mask to prove identity in the current case (say he wasn't caught in the act in the current case but we know it was the chicken mask robber). Of course the defense would argue it was a copy cat, but this goes to weight not admissibility.

In this question's example you could only introduce general reputation for violence of the defendant if the defense first claimed the game warden was a violent person.


For what it is worth, I would have said D just because the thrust of the defense has to do with the warden's carrying a weapon out of uniform. A factually different past incident of "self-defense" is irrelevant to the current case. C is correct, but I think it is based on the same logic that D is getting at.

EDIT: the poster above is correct. I suppose the past incident is relevant (although pretty minimally) -- the reason it is excluded is for the reasons stated in C.

I thought lack of mistake applied and I still don't understand why it doesn't.

Georgia Avenue wrote:

MoneyMay wrote:A defendant is charged with aggravated assault on a game warden. The defendant testified that, when he was confronted by the warden, who was armed and out of uniform, the defendant believed the warden was a robber and shot in self-defense. The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense.

The witness's testimony is

A. admissible, as evidence of the defendant's untruthfulness.
B. admissible, as evidence that the defendant did not act in self-defense on this occasion.
C. inadmissible, because it is improper character evidence.
D. inadmissible, because it is irrelevant to the defense the defendant raised.



The answer is C and for the life of me I can't figure out why this isn't admissible under MIMIC. I feel like I've seen this one a millino times and the answer has always been B.

The answer can't be B, because then you would be offering the evidence solely to show the defendant acted in accordance in the present situation. That's an impermissible way to use prior acts against a defendant.

This is really one where process of elimination gets you C. We know it's not A because the defendant hasn't opened the door to character evidence of his untruthfulness, so that's an impermissible use, and even if he had it's an impermissible way to impeach the defendant. We know it's not D because it's obviously relevant - relevance has a very low bar and we're definitely over it here, since this evidence would tend to make a material fact more or less likely. For the reasons above, it's not B either. So that leaves us with C.

Wait, why cant it be A again? Defendant is testifying currently, so can't you attack him with dishonest prior bad acts relating to truthfulness? I am probably mistaken, when can you use prior bad acts against a D or a W when the prior bad act is about their dishonesty?

MoneyMay wrote:I thought lack of mistake applied and I still don't understand why it doesn't.

The shooter is not claiming he made a mistake. He intentionally shot the warden, only he says it was in self-defense. Lack of mistake is more of a situation where a scientist gets caught making drugs/contraband chemicals in a lab and claims he did it by accident, not knowing what he was mixing together. You could then use a prior arrest for making those same or similar chemicals as evidence refuting his defense of mistake.

Regarding A - you cannot impeach a witness's credibility with direct examination testimony of the witness's prior bad acts (Rule 608(c)). You can only inquire about specific bad acts on cross-examination with a good faith basis.

It's not A because it has nothing to do with his honesty

Georgia Avenue wrote:

MoneyMay wrote:I thought lack of mistake applied and I still don't understand why it doesn't.

The shooter is not claiming he made a mistake. He intentionally shot the warden, only he says it was in self-defense. Lack of mistake is more of a situation where a scientist gets caught making drugs/contraband chemicals in a lab and claims he did it by accident, not knowing what he was mixing together. You could then use a prior arrest for making those same or similar chemicals as evidence refuting his defense of mistake.

Regarding A - you cannot impeach a witness's credibility with direct examination testimony of the witness's prior bad acts (Rule 608(c)). You can only inquire about specific bad acts on cross-examination with a good faith basis.

ok, thanks. I knew u couldnt use bad acts, but for some reason I thought there was an exception for "truthfulness"

MoneyMay wrote:It's not A because it has nothing to do with his honesty

"The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense."

Seems to be related to honesty for me.

Mroberts3 wrote:I suppose the past incident is relevant (although pretty minimally).

And that's all you need. For evidence to be relevant is just has to have ANY tendency to make a material fact more or less likely. Even if it only makes a fact .0001% more or less likely, it's relevant. Exactly how relevant a piece of evidence is goes only to the weight, not the admissibility, of the evidence.

It's not A because of irrelevance - it's relevant to his honesty - but it's not admissible under A because it's an improper way to impeach the defendant's credibility under Rule 608(c).

pizzasodafries wrote:

Georgia Avenue wrote:

MoneyMay wrote:I thought lack of mistake applied and I still don't understand why it doesn't.

The shooter is not claiming he made a mistake. He intentionally shot the warden, only he says it was in self-defense. Lack of mistake is more of a situation where a scientist gets caught making drugs/contraband chemicals in a lab and claims he did it by accident, not knowing what he was mixing together. You could then use a prior arrest for making those same or similar chemicals as evidence refuting his defense of mistake.

Regarding A - you cannot impeach a witness's credibility with direct examination testimony of the witness's prior bad acts (Rule 608(c)). You can only inquire about specific bad acts on cross-examination with a good faith basis.

ok, thanks. I knew u couldnt use bad acts, but for some reason I thought there was an exception for "truthfulness"

Wait... if you have a good faith basis you can ask someone about prior bad acts it's just you can't use extrinsic evidence to prove them I thought.

pizzasodafries wrote:ok, thanks. I knew u couldnt use bad acts, but for some reason I thought there was an exception for "truthfulness"

You might be thinking of Rule 609 impeachment - where we'll allow the prosecutor to ask about prior criminal convictions so long as they're felonies or crimes of dishonesty, because we view those crimes as so indicative of a witness's character for truth that we should let them in.

pizzasodafries wrote:

MoneyMay wrote:It's not A because it has nothing to do with his honesty

"The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense."

Seems to be related to honesty for me.

Even so, I don't think the prosecution can call its own witness and ask about a specific instance that is probative of D's truthfulness. It would have to be reputation or opinion testimony. Specific instances are only permitted on cross of D's own witness.

MoneyMay wrote:

pizzasodafries wrote:Wait... if you have a good faith basis you can ask someone about prior bad acts it's just you can't use extrinsic evidence to prove them I thought.

Correct, on cross-examination only of that witness.

You cannot call another witness - which is what the prosecutor did here - to testify on direct examination about ANOTHER witness's prior bad acts for the purpose of impeaching the first witness.

BTW, this thread proves why character evidence and modes of impeachment suck ass.

At least in my humble opinion.

LouEVille wrote:

pizzasodafries wrote:

MoneyMay wrote:It's not A because it has nothing to do with his honesty

"The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense."

Seems to be related to honesty for me.

Even so, I don't think the prosecution can call its own witness and ask about a specific instance that is probative of D's truthfulness. It would have to be reputation or opinion testimony. Specific instances are only permitted on cross of D's own witness.

thank you, this is where I was mistaken, they had to cross him with this and live with his answer. I think that would have been the proper way (in this case they likely would have needed a 403 weighing to decide the prejudice vs probative value of that question most likely)

LouEVille wrote:BTW, this thread proves why character evidence and modes of impeachment suck ass.

At least in my humble opinion.

The hardest part of evidence, by far.

Okay where I got tripped up was there was no mistake or accident defense. If there was then I think it would've gotten in. Evidence is my best subject on the MBE (I always only miss a few) but this is killing my confidence.

MoneyMay wrote:Okay where I got tripped up was there was no mistake or accident defense. If there was then I think it would've gotten in. Evidence is my best subject on the MBE (I always only miss a few) but this is killing my confidence.

I knew it wasn't MIMIC and I still got it wrong

Question: Had he claimed a mistake/ accident defense, would this have been MIMIC and admissible?

MoneyMay wrote:Question: Had he claimed a mistake/ accident defense, would this have been MIMIC and admissible?

the evidence would have to show that it could not have been a mistake or accident on this occasion. Don't think a situation from a year before would be tied in to show this was not a mistake or accident a year later. Not sure though, Mistake or Accident was never really elaborated on with proper hypos. All I remember is the "knife" case and that it couldn't have been an accident since she did the same thing like a night before or whatever.

MoneyMay wrote:Question: Had he claimed a mistake/ accident defense, would this have been MIMIC and admissible?

Depends what exactly the defense was, and how probative it would be - you'd likely run into a 403 problem.

Georgia Avenue wrote:

MoneyMay wrote:Question: Had he claimed a mistake/ accident defense, would this have been MIMIC and admissible?

Depends what exactly the defense was, and how probative it would be - you'd likely run into a 403 problem.

403 aside I am trying to figure out where I goofed, and I am just making sure it's because he didn't claim mistake/ accident (again assuming the evidence would be relevant for that purpose and no 403 problem.)