MBE Fast Fact: Fruit of the Poisonous Tree

The "Fruit of the Poisonous Tree" doctrine makes it possible for the exclusionary rule to not only exclude evidence obtained in violation of the Fourth, Fifth, and Sixth Amendments, but also to exclude evidence obtained from exploitation of the unconstitutionally obtained evidence. To extend the symbolism, not only is the tree excluded (the evidence obtained in violation of the Amendments), but the fruit of that tree (evidence that would not have been obtained had the illegally obtained evidence not been obtained) is also excluded.

For MBE purposes, knowing when this doctrine does not apply is just as important as understanding the doctrine itself. The doctrine does not apply to evidence derived in violation of Miranda, evidence obtained from a source independent of the illegally obtained evidence, evidence obtained as a result of an intervening act of free will by the defendant, evidence that the police would have discovered regardless of the illegally obtained evidence (often deemed the "inevitable discovery doctrine,) and evidence obtained in violation of the “knock and announce rule.”

A Reasonable Expectation of Privacy (4th Amendment)

An initial consideration in any 4th Amendment issue is to determine if a person has a reasonable expectation of privacy. Without first analyzing that consideration, it's easy to fall into the trap of analyzing other considerations that require no analysis. If a person does not have a reasonable expectation of privacy, then that person is not protected by the 4th Amendment, so a full 4th Amendment analysis would be unnecessary.

This is not an uncommon tactic by the writers of the MBE. You'll read a fact pattern and overlook one line which will then take you down the wrong road, wasting time, and eventually leading to the wrong answer. That said, you should know well when the 4th Amendment does not apply.

A person does not have a reasonable expectation of privacy in the following:

The sound of one's voice

One's handwriting

Paint on the outside of one's vehicle

Garbage left for collection

Areas outside the home (often referred to as curtilage)

Account records held by a bank

The smell of one's car or luggage

Land visible from a public place.


What the above means is that the government can "search" these areas without having to concern itself with the warrant requirement that is implicated when the 4th Amendment does apply.

The Essentials: Evidence

Throughout my years as a tutor for the bar exam, I’ve worked with many students who are preparing for the Multistate Bar Exam (“MBE”). It’s become obvious to me that, although some of the content is quite complex, the difficulty of this test is primarily in the amount of material that the test-makers require, rather than the content of the material itself. As such, I’ve created a resource that I hope will act as a supplement to the outlines that students use when preparing for the exam. This resource alone does not cover all of the material that must be learned in any given subject, as that is not the intent. Rather, based upon my knowledge both of the issues that show up most often in the practice questions, as well as the patterns I’ve noticed in regard to important areas of law that students often overlook in the outlines, I’ve created a resource that narrows down the content to what I deem essential in any given subject. In addition, I’ve created the outline in a manner that I believe is very conducive to learning the law; namely, it is written in a question and answer format to provide for a more conversational presentation than is provided in traditional outlines.

"The Essentials: Evidence" spans 18 pages of a PDF file, and contains 54 questions and answers covering the most heavily tested topics within Evidence on the MBE. It's available for $15.00, and once purchased can be downloaded immediately.

I very much hope you find it a helpful addition to the resources you are using as you prepare for the MBE!

Best,

Sean Silverman

MBE Fast Fact: Present Bodily Condition vs. Past Bodily Condition

Statements about one's present bodily condition and statements about one's past bodily condition have the potential to be admitted into evidence even if those statements were made out of court, and are offered for the truth of the matter asserted. In other words, they are both potential exceptions to the rule against hearsay.

But there is an important distinction to keep in mind here. A declaration of a present bodily condition is admissible even though that declaration is not made to a medical professional, while a declaration of a past physical condition is admissible only if made to a medical professional to assist in diagnosing or treating the condition. Be sure to note this distinction, and also watch out for those questions in which someone makes a statement to a physician about a past bodily condition, but the statement is not made for the purpose of diagnosis or treatment. Those statements are excluded, as they are not covered by this exception.

A Hearsay Question

The following question was asked through e-mail by a reader of the blog:

I understand truth of the matter asserted, but can't wrap my head around statements that are not in that category. Are there some that we can rely upon that will show up on the MBE?

Response:

Any statement offered for a reason other than to prove the truth of the content of that particular statement is not subject to the rule against hearsay. That said, there are only a few types of statements often tested on the MBE that fall within this category, and I'll address them here:

If a statement is offered, but it is offered merely because it is itself a legally operative fact, then that statement is not hearsay. For example, a statement might be offered to show that there was an acceptance of an offer in a contract, and there is no hearsay problem with such a statement, because it is being offered to show there was an acceptance, and it is not being offered to prove the truth of whatever was stated in that acceptance.

In addition, a statement might be offered to show its effect on the listener. For example, a statement might be offered to show that a person was on notice about a dangerous condition and was therefore negligent in not fixing that condition once on notice. Such statements are not hearsay, as they are being offered to prove notice, and not to prove truth of the matter asserted.

Statements might also be offered as circumstantial evidence of the declarant’s state of mind. For example, if evidence is offered that the declarant stated that a purple elephant demanded he kill his wife, such a statement can be offered to develop a defense of insanity. Such a statement would not be hearsay, as it is not being offered to prove that a purple elephant did, in fact, demand that defendant kill his wife (ie., the truth of the matter asserted).

Cross Examination vs. Extrinsic Evidence

I've written a bit on the blog about impeaching witnesses. In addition to knowing the rules regarding when to impeach a witness (for example, if the witness has committed a felony, made a prior inconsistent statement, etc.), it's also important to know how the witness may be impeached. The two possibilities are by cross examination and extrinsic evidence. (Extrinsic evidence is evidence other than that elicited by cross-examination, such as calling a witness to testify about another witness, or offering a copy of a judgement to prove that a witness has been convicted of a felony.)

Below is a list to help keep the distinctions in mind:

Prior Inconsistent Statements: Cross Examination and extrinsic evidence are allowed (but no extrinsic evidence to prove a prior inconsistent statement if the inconsistent statement is a collateral matter). Note also, that if extrinsic evidence is offered here, the witness (unless it's a hearsay declarant) must at some point be provided the opportunity to explain or deny the inconsistent statement.

Bias: Cross examination and extrinsic evidence are allowed. Before extrinsic evidence is offered, the witness must first be asked on cross examination about the facts showing bias.

Conviction of a Crime: Cross examination and extrinsic evidence (a copy of the judgement) are allowed.

Specific Instances of Misconduct: Cross examination only is allowed.

Opinion or Reputation for Truthfulness: Extrinsic evidence is allowed (calling other witnesses to testify to the reputation or give an opinion about another witness).

Sensory Deficiencies: Cross examination and extrinsic evidence are allowed.

Expert Witnesses

A few points to know about experts, as you study Evidence in preparation for the MBE:

Questions arise as to whether a witness is allowed to provide an opinion regarding a subject-matter that requires specialized knowledge. The Federal Rules of Evidence does not allow for such testimony by a lay witness, but may allow such testimony by an expert. So, then, who is an expert, and when is such testimony allowable?

An expert is one who possesses specialized knowledge, skill, experience, training, and education. If the subject-matter is one where scientific, technical or other specialized knowledge would assist the trier of fact, then an expert may be allowed to provide opinion testimony, provided that the witness has been qualified as an expert, the expert possesses reasonable probability regarding his opinion, and the opinion is supported by a proper factual basis. The factual basis will be proper if it is based on the expert’s personal observation, facts made known to the expert at trial, or facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by experts in the particular field.

Also note that other commonly tested questions within this area deal with the cross-examination of experts. If an expert has, on direct examination, established as reliable authority a certain publication, the expert may be cross-examined as to any statement contained in that publication. Even if the expert has not personally established such facts as reliable, the statements can still be used to cross-examine the expert if another expert established the reliability, or if the court chooses to take judicial notice of the reliability. These statements may be used not only to impeach the expert, but also as evidence of the truth of the matter asserted, as these statements fall within an exception to the rule against hearsay.

Legal Analysis

The ability to analyze a legal issue by applying the rule of law to the facts provided is an essential skill for bar exam success. Becoming proficient at it takes quite a lot of practice.

An approach I often recommend to my students is to try breaking down the rule of law into individual elements, and then applying each element separately. This approach greatly minimizes the potential of missing any aspect of the analysis that might earn points on the exam.

So, for example, if you were to analyze the tort of battery in an essay, you'd break apart the tort into the individual elements of (1) intentional (2) harmful or offensive, (3) contact (4) with another (5) without the other's consent.

Then, analyze each element separately to determine that all elements have been satisfied, and form your conclusion based upon that analysis. Note that it's not necessary to present the rule on an essay with the numbers as stated above, but doing so when you are practicing your analysis is an excellent method for ensuring that the approach becomes more natural at which point the numbers are no longer necessary.

February 2013 New York Results

Congratulations to all those who received positive news today from the New York Board of Law Examiners!

MBE Fast Fact: Impossibility vs. Impracticability

When there is a fine distinction, it's likely it'll be tested on the MBE. One such distinction is that between impossibility and impracticability, both of which can be used to discharge a contractual obligation.

An important distinction here is between the standards of subjectivity and objectivity. When assessing impossibility, a contractual obligation can be discharged if the obligation is deemed impossible to perform, using an objective standard. In other words, it must be true that nobody could perform according to the terms of the contract(for example, if the subject matter of the contract has been destroyed). The impossibility must arise after the contract has been entered into.

In contrast, impracticability is measured by a subjective standard. Rather than asking whether anyone could perform according to the terms of the contract, the proper analysis is to determine whether an extreme and unreasonable difficulty has arisen that was not anticipated by the party claiming impracticability, so that the party is subjectively unable to perform according to the terms of the contract. It's important to note that although a subjective test is proper here, it's not enough that performing under the contract has been rendered more difficult, if those difficulties were anticipated prior to entering into the contract.

MBE Fast Fact: The Rule of Completeness

The "Rule of Completeness" shows up on occasion on the MBE. The rule should be considered whenever a party introduces a writing (or recording) into evidence. Once that party has introduced any part of the writing, the adverse party may require the party to introduce any other part of that writing which in fairness ought to be considered along with the part that was introduced.

Another way to think about this rule is that the party that introduced a part of a document, merely by introducing it, has waived the right to object to introduction of other parts of that same document by the opposing party.

MBE Fast Fact: The Spending Power

There are only a few things to know for the MBE about Congress's spending power. First, the power of Congress to spend (and tax) can be exercised only for the general welfare of the United States. A very common question appearing on the MBE is one in which Congress requires states to comply with specified conditions in order to qualify for federal funding. The fact that Congress has offered the funding is allowable, but the issue is whether it can condition receipt of the funding on compliance. The rule to note is that Congress can require states to comply in order to receive the funding. For example, Congress can withhold federal highway funds from any state that refuses to enact a law permitting the purchasing of alcoholic beverages by only those over the age of 21.

An important distinction to note is where Congress attempts to compel the states to enforce federal regulations. Though, as stated above, Congress can encourage the states to adopt certain federal regulations through the spending power (by attaching conditions to the receipt of federal funds), or through the commerce power (by directly pre-empting state law), Congress cannot directly compel states to enforce federal regulations, as this would violate the 10th Amendment.

A Study Tip

I received an e-mail from a student who had struggled quite a bit with the bar exam, but overcame the hurdle in February. I hope it serves to let others know that much of success on the test is simply studying correctly. Hard work, and perseverance will pay off.

Within the e-mail was the following line:

What helped me the most was doing the actual questions myself and then going over the wrong ones with you individually - with emphasis on why I picked the choice I picked and more importantly why the correct answer was the correct answer.

Whether you choose private tutoring, studying on your own, or taking a bar review course, do not neglect this important advice: Treat each question as a tool for teaching you a rule of law that you can apply to future questions. When studying for the exam, getting a question wrong and then understanding why you got it wrong, is far more beneficial than getting it right, with a vague knowledge as to why you were correct.

Miranda Exceptions

A lot has been said on the news this week regarding the public safety exception to the Miranda rule. And though this exception is important to know for the MBE, there are other exceptions you should be aware of as well.

First the rule: Miranda warnings (if no exceptions apply) must be provided prior to any statement made during "custodial interrogation." A suspect is in custody when, by an objective standard, the suspect is not free to leave. If a suspect while in custody is interrogated without having been read Miranda warnings, those statements may be excluded from evidence during trial as per the exclusionary rule.

The exceptions that must be kept in mind as to when Miranda warnings are not required are as follows:

(1) Questioning by private security guards (as opposed to the government).

(2) Statements made before a grand jury.

(3) On the scene questioning if it's unreasonable for a suspect to believe that he/she is not free to leave the scene.

(4) Spontaneous, unsolicited statements, as these statements would not be deemed a consequence of interrogation. These are voluntary statements, and these statements will not be excluded for lack of Miranda warnings.

(5) Interrogation of a taxpayer during a criminal investigation by the I.R.S.

(6) When the right to receive the warnings is outweighed by the immediate threat posed to the public safety.

(7) Routine booking questions by the police such as age, date of birth, height, and weight.


As always, note the exceptions well. Knowing the rule is the foundation, but knowing the exceptions will earn you the points on the MBE.

Quantity vs. Quality

I'm often asked how many questions one should attempt to complete while preparing for the MBE. Though I do have a number in mind, the answer really comes down to the importance of quality over quantity.

The reason why quantity matters is because the more questions you do, the more angles you'll see as to each testable issue. And the more angles you see, the less likely it is you'll see anything on the test you haven't seen while studying. It's tough to believe, but the testable content on the MBE is limited, and there comes a point when you start seeing the same issues tested, though, of course, they are hidden in a wide variety fact patterns. That's when you know you are ready for the exam.

But it's extremely difficult to get to that point (with any real confidence) in the short time that is provided to study for the bar exam. And that's why quality of studying is essential, and even more important than quantity. You want to make sure that each question counts. What I mean by that is that you want to make sure that you know well the issue that was tested in every practice question that you complete, because, again, your goal is to begin to see the same issues tested repeatedly, and that is much less likely if you waste a question (by not, for example, writing down the issue that was tested in the particular question, and the rule of law needed to address the issue to arrive at the correct conclusion).

And in regard to a specific number, I'd say at least 300 questions in each subject area is a very good goal.