3 Felonies & a Misdemeanor

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

This entry diverges from the standard Nit format of pointing out language tips and traps common on the MBE. This entry focuses on substantive issues and come from one of the major bar review courses from 2009.

Evidence: 3 Felonies & a Misdemeanor

The defendant is on trial for embezzlement. He does not take the stand. Which of the defendant’s previous convictions is most likely to be admitted into evidence against him?
A. A 7-year-old conviction for arson, a felony.
B. A 12-year-old conviction for embezzlement.
C. A 6-month-old conviction for disorderly conduct.
D. A 2-year-old conviction for felonious sexual assault.

It’s short, but it’s a killer: Keep in mind this is a notorious “most likely” question.

Convictions are usually used to impeach, but a defendant who doesn't take the stand is not open to impeachment. Test takers have to spot that critical point.

Once spotted, throw out all those impeachment-by-conviction-related rules covered in the FRE at 609, including the 10-year time limit, felony vs. misdemeanor, et al.

That leaves the introduction of crimes under relevancy, and specifically character evidence, covered in the FRE at 404. And as we all know, character evidence generally is not admissible for the purposes of proving action in conformity with that previous behavior.

FRE 404(b) prohibits evidence of other crimes to prove character and action in conformity with earlier criminal behavior. But — and of course there's a “but” — evidence of other crimes can be used for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (FRE 404(b))

So, who can think of a way that arson, sexual assault or disorderly conduct could substantiate motive, opportunity, intent, etc. with respect to the present embezzlement charge? Any postulation would likely present a pretty thin stretch.

That leaves answer choice B: A 12-year-old conviction for embezzlement. And that was the correct answer choice.

Remember on this question it’s the answer that’s “most likely.”
Let’s hope in a real world court room, a timely objection would be made to exclude under the rule that any relevant evidence may be excluded where its probative value is substantially outweighed by the risk of unfair prejudice. (FRE 403)

Admitting the 12-year-old conviction for embezzlement in a current trial for embezzlement would be tantamount to adopting the doctrine of “once a thief, always a thief,” and therefore constitutes blatant prejudice.

There’s already plenty of that kind of prejudice going around in society at large, but let’s hope legal officers keep it out of the courtroom.
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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.