California
Bar
Examination
Performance Test
and
Selected Answers
July 2019
The State Bar of California
Committee of Bar Examiners / Office of Admissions
180 Howard Street • San Francisco, CA 94105-1639 • (415) 538-2300
845 S. Figueroa Street • Los Angeles, CA 90017-2515 • (213) 765-1500
PERFORMANCE TEST AND SELECTED ANSWERS
JULY 2019
CALIFORNIA BAR EXAMINATION
This publication contains the performance test from the July 2019 California Bar
Examination and two selected answers.
The answers were assigned high grades and were written by applicants who passed the
examination after one read. The answers were produced as submitted by the applicant,
except that minor corrections in spelling and punctuation were made for ease in
reading. They are reproduced here with the consent of the authors.
CONTENTS
I. Performance Test: State v. Martin
II. Selected Answers for Performance Test
July 2019
California
Bar
Examination
Performance Test
INSTRUCTIONS AND FILE
STATE v. MARTIN
Instructions ........................................................................................................................
FILE
Memorandum to Applicant from Andrew Solmark .............................................................
Memorandum to File from Janelle Phinney .......................................................................
Transcript of Pretrial Hearing………………………………………………………………….
STATE v. MARTIN
INSTRUCTIONS
1. This performance test is designed to evaluate your ability to handle a select
number of legal authorities in the context of a factual problem involving a client.
2. The problem is set in the fictional State of Columbia, one of the United States.
3. You will have two sets of materials with which to work: a File and a Library.
4. The File contains factual materials about your case. The first document is a
memorandum containing the instructions for the tasks you are to complete.
5. The Library contains the legal authorities needed to complete the tasks. The case
reports may be real, modified, or written solely for the purpose of this performance
test. If the cases appear familiar to you, do not assume that they are precisely the
same as you have read before. Read each thoroughly, as if it were new to you.
You should assume that cases were decided in the jurisdictions and on the dates
shown. In citing cases from the Library, you may use abbreviations and omit page
citations.
6. You should concentrate on the materials provided, but you should also bring to
bear on the problem your general knowledge of the law. What you have learned in
law school and elsewhere provides the general background for analyzing the
problem; the File and Library provide the specific materials with which you must
work.
7. This performance test is designed to be completed in 90 minutes. Although there
are no parameters on how to apportion that 90 minutes, you should allow yourself
sufficient time to thoroughly review the materials and organize your planned
response. Since the time allotted for this session of the examination includes two
(2) essay questions in addition to this performance test, time management is
essential.
8. Your response will be graded on its compliance with instructions and on its
content, thoroughness, and organization.
OFFICE OF THE DISTRICT ATTORNEY
Concord Judicial Circuit
Sonnerville, Columbia
MEMORANDUM
TO: Applicant
FROM: Andrew Solmark, Assistant District Attorney
DATE: July 30, 2019
RE: State v. Martin
I had a hearing yesterday on the Bernice Martin case. We have charged her with
identity theft. Martin acquired the name and Social Security number (SSN) of another
person from her former job at FastCom, a cell phone company. Using this information,
she tried to open charge accounts at several stores, in one case successfully. The
person whose name and SSN Ms. Martin used discovered that use and put a fraud alert
on her cards. The police eventually arrested Ms. Martin. I include a Memorandum to
File that summarizes the expected testimony on these points.
At yesterday’s hearing, I gave notice that we intended to introduce evidence of three
specific incidents involving Ms. Martin.
We want to use all three of these incidents as similar acts evidence to rebut the defense
that we expect Ms. Martin to offer. I would like to admit them as substantive evidence
under Columbia Rule of Evidence 404. I would also like to use them to impeach Ms.
Martin if she takes the stand under Columbia Rule of Evidence 608.
Before I start briefing, I need an objective appraisal of the arguments for and against
admission of this testimony. Please write a memorandum analyzing first, whether we
can admit any of these incidents as substantive evidence, and second, whether we can
use them in impeaching Ms. Martin if she takes the stand.
MEMORANDUM
TO: File
FROM: Janelle Phinney, Deputy District Attorney
DATE: May 16, 2019
RE: State v. Martin – Summary of Expected Testimony
We have charged Bernice Martin with two counts of identity theft, for the use of a name
and Social Security number acquired while employed by FastCom, a cell phone
company. The following witnesses have been subpoenaed for trial:
CONSTANCE GAINER: Gainer is a customer service representative at Blake’s
Department Stores. She will testify that she reviewed an application for store credit
from a “Bernecia Martinez” whose Social Security number was 989-22-0094. A credit
check verified “Bernecia Martinez” met the credit requirements for a charge card.
Pursuant to store policy, Gainer called the number listed on the application to confirm a
mailing address. The caller answered, “This is Bernice.” A later check of that phone
number indicated that it belonged to the defendant, Bernice Martin.
Gainer will also testify that Ms. Martin charged nearly $5,000 worth of goods from the
store, including appliances, electronics, and some clothing.
HENRY FRANKS: Franks is an accounts manager at Chiclet’s Clothing, a women’s
clothing store. Franks will testify that he received an online application for store credit
from “Bernecia Martinez” whose Social Security number was 989-22-0094. Franks
noted that the store already had an account in that name with that Social Security
number. He called Martinez and reported the effort to open another card in her name.
Martinez asked him to put a fraud alert on her account. Franks testified that he notified
the police of the incident.
JOAN TIMMONS: Timmons was Martin’s immediate supervisor at FastCom. She will
testify that Martin had a position in the accounts department. Martin’s job
responsibilities included reviewing applications for new accounts and ensuring the new
customers had provided complete information in their applications, including name and
Social Security numbers.
Timmons will testify to the procedures through which FastCom receives, reviews, and
stores records of application. She will testify that Martin had access to FastCom
records that included the name of Bernecia Martinez, who had the same Social Security
number listed above.
Finally, Timmons can testify that she personally reviewed Martin’s employment record
with FastCom and that Martin listed her Social Security number as 989-21-0994, which
contained only two digits that were different from Ms. Martinez’s number.
STATE v. MARTIN
Transcript of Pretrial Hearing
July 29, 2019
COURT: All right, that is all for the witness lists. Mr. Solmark, what’s next on the
case?
SOLMARK: Your honor, the State provides pretrial notice of its intention to offer similar
acts evidence.
COURT: Any objection from the defense, Ms. Dacosta?
DACOSTA: There will be, yes, your honor.
COURT: All right. I’ll hear from Mr. Solmark first.
SOLMARK: Your honor, I am referring to three separate incidents. First, we have a
good faith belief that, three months ago, a police officer stopped Ms.
Martin for a broken tail light. Ms. Martin gave the officer a different name
and driver’s license than her own, which the officer discovered when he
ran the car’s registration. It turned out that Ms. Martin’s own license had
expired. He later learned that the name and license belonged to Ms.
Martin’s sister, Beverly Martin.
COURT: Has she been charged or convicted of any crimes arising out of the traffic
stop?
SOLMARK: No, your honor.
Second, we have a good faith belief that another officer stopped Ms.
Martin on the sidewalk outside the Blue Moon Bar about two months ago.
Ms. Martin was visibly intoxicated, barely able to stand, with a strong smell
of alcohol on her breath. She started to shout at the officer, but after a
warning, she walked away and hailed a cab.
Third, your honor, we have information involving Bernecia Martinez, the
individual in whose name Ms. Martin tried to open several store accounts.
Two weeks ago, Ms. Martinez received a call on her cell phone from a
woman who identified herself as Bernice. The caller threatened Ms.
Martinez by saying that, if she testified at the trial in this case, she would
regret it. She will also testify that the caller said that it would be better if
Ms. Martinez would testify that she gave “Bernice” permission to open
those accounts. After the call ended, Ms. Martinez wrote down the phone
number. We later identified it as belonging to Ms. Martin’s FastCom
phone account.
COURT: Ms. Dacosta, your objection?
DACOSTA: Your honor, we contend that this entire case is the result of a computer
error at the two stores. The stores mixed up the names and social
security numbers of Ms. Martinez and Ms. Martin. My client was trying to
open accounts in her own name and had entirely innocent intentions.
We object to this evidence. None of those incidents qualify under Rule
404(b). The State just wants to show Ms. Martin up as a bad actor who
should be punished for other reasons. It’s propensity evidence, pure and
simple.
COURT: Mr. Solmark?
SOLMARK: Your honor, all three incidents raise inferences under Rule 404(b)(2). In
addition, the defendant will likely take the stand. If she does, we will use
these incidents to impeach her.
DACOSTA: Your honor, not one of these incidents goes to truthfulness. First, the
traffic stop was just a mistake. Second, being drunk doesn’t make you a
liar. And finally, that conversation with Ms. Martinez isn’t about
truthfulness. It’s about the prosecution’s effort to paint my client as a
violent person. Rule 608(b) requires that the specific conduct go to
truthfulness. These do not.
SOLMARK: Your honor, may I respond?
COURT: No. I’m not ruling today. We will set a briefing schedule later. Anything
else on this case?
SOLMARK: No. Thank you, your honor.
DACOSTA: Nor from me, your honor.
July 2019
California
Bar
Examination
Performance Test
LIBRARY
STATE v. MARTIN
LIBRARY
State v. Landreau
Columbia Supreme Court (2011) .......................................................................................
State v. Proctor
Columbia Supreme Court (2008) .......................................................................................
State v. Landreau
Supreme Court of Columbia (2011)
Marianne Landreau (Landreau) was convicted of passing a series of bad
checks in amounts that totaled over $10,000. On appeal, she claims that the trial
court abused its discretion in admitting evidence of certain specific acts under
Columbia Rule of Evidence (CRE) 404(b). We affirm.
In its case in chief, the prosecution proved that Landreau attempted to
open checking accounts with four different banks over a two-week period. In
each case, she opened the accounts with checks payable to her and signed by
Charles Hickson. Hickson and Landreau had lived together for several months
before Landreau attempted to open the bank accounts. About a month before
the first attempt, Hickson lost his job as a dishwasher at a restaurant, a fact that
Landreau knew. After the fourth attempt was reported to the police, the police
arrested Landreau and Hickson.
In his opening statement, Landreau’s counsel claimed that his client did
not know how much money Hickson had in his checking account and that her
opening of the account resulted from an innocent mistake. He argued that, as a
result, she lacked the “intent to defraud or deceive” that forms an element of the
charged crime.
In response, before opening its case in chief, the prosecution notified the
court of its intention to offer evidence of two specific actions of Landreau’s. First,
it proffered evidence that, two years before the events in this case, during an
application to a bank for a mortgage loan, Landreau had provided the bank with a
false name, a fabricated Social Security number, and a made-up date of birth.
The bank eventually learned Landreau’s actual identity during the credit check
and denied the loan.
Second, the prosecution proffered evidence that, one year before the
events in this case, Landreau had been arrested for physically assaulting another
patron of a bar after a heated fight. The other patron chose not to file charges.
The prosecution proposed to call both that patron and the arresting officer as
witnesses.
Landreau objected to the use of both incidents, arguing that they
constituted specific instances of conduct offered “to prove a person's character in
order to show that on a particular occasion the person acted in accordance with
the character” under CRE 404(b). The trial court overruled the objection and
permitted the prosecution to introduce evidence of the incidents.
We first address the application for a mortgage. CRE 404(b)(1) prohibits
the admission of prior bad acts to establish an individual's character or propensity
to commit a crime. Rule 404(b)(2) does permit, however, the admission of prior
bad acts “for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
In determining the admissibility of evidence under Rule 404(b), our trial
courts must determine whether the evidence has relevance for some purpose
other than as proof of propensity. The list of purposes listed in Rule 404(b)(2)
provides a starting point for this analysis, but the list is not exhaustive. To
determine whether proffered evidence has relevance for one of the other
purpose, the court considers 1) the degree of similarity to the charged crime and
2) the temporal relationship of the other acts.
In this case, the trial court admitted the evidence of the mortgage
application because it showed “opportunity, intent, preparation, plan, knowledge,
and absence of mistake or accident.” We believe, more precisely, that the
mortgage application is relevant to show intent or absence of mistake because
the evidence rebuts an innocent involvement defense.
Specific acts can be the basis for inferring that the defendant had a mental
state that is inconsistent with innocence. Our prior cases have often established
that similar acts may be admitted to rebut a claim of innocent involvement. See,
State v. Rodgers (affirming the admission of evidence of prior importation of
drugs to rebut the defendant’s claim that he was an innocent participant in the
charged importation); State v. Vargas (no abuse of discretion in admitting
evidence of prior fraudulent transactions to rebut the claim that defendant had
been duped into joining the charged transactions.)
In this case, Landreau claims that she did not know that Hickson’s checks
would bounce and that she had no intention to defraud the bank. However, her
false statements on the mortgage application indicate an instance of deception to
obtain a financial advantage for herself.
The prior mortgage application is also sufficiently similar to be relevant.
The other bad act need not be identical to the crime charged so long as it is
sufficiently similar to permit a reasonable inference of knowledge or intent.
Landreau contends that the two incidents are not similar because a mortgage
application is different from opening a bank account. But we find this incident
probative of her willingness to deceive so as to secure money from a financial
institution.
The prior acts are also sufficiently close in time to the charges in this case
to satisfy our prior decisions. We find no abuse of discretion in the admission of
this evidence.
We do, however, agree with Landreau that the incident of the altercation in
the bar does not satisfy the requirements of Rule 404(b). Acts of violence or of
intoxication are not sufficiently similar to the crime of passing bad checks to
permit any inference of knowledge or intent. In light of the other evidence
against Landreau, however, we find that the evidence of the altercation did not
have an impact on the verdict. Admission of this evidence thus constituted
harmless error.
Affirmed.
State v. Proctor
Supreme Court of Columbia (2008)
Petitioner, Joseph Proctor (Proctor), is charged with aggravated battery of
a 13-year old child. At trial, the prosecution's chief witness was the child victim.
Proctor contended that T.L.'s allegations were fabricated and was prepared to
offer videotapes and call witnesses to support his theory of the case.
After the child testified, defense counsel cross-examined her. The
following exchange occurred:
Q: Now, you have promised the Judge to tell the truth to this
jury, haven't you?
A: Yes.
Q: And in order to tell the truth to the jury, that requires you to
be honest, correct?
A: Yes.
Q: Okay. But you're not always honest, are you?
A: What do you mean?
Q: Well, last July, you and Josh stole $100 from your mother's
store in Danville, didn't you?
A: No.
At this point, the prosecutor objected on the grounds that evidence of
specific acts was inadmissible under Columbia Rule of Evidence (CRE) 404(b).
Defense counsel responded by asserting Rule 608(b) as grounds to allow the
question as impeachment of the witness.
The trial court agreed with the prosecution that the evidence of shoplifting
was inadmissible under Rule 404(b)(1). As to use of the evidence under Rule
608(b), the trial court ruled that defense counsel could only impeach the witness
with the shoplifting incident, for which there was no conviction, if counsel
established that the witness “was untruthful about the issue when questioned by
someone on that topic.” The trial court thus sustained the objection and
instructed the jury that it should disregard the question.
On appeal, the defendant argues that questioning the child witness about
the shoplifting incident constituted a permissible form of impeachment under
Rule 608(b). This argument requires us to consider for the first time whether an
act of shoplifting is proper impeachment evidence under this rule.
If a witness takes the stand and testifies, she puts her credibility in issue.
Thus, the opposing party is entitled to impeach the witness's credibility. Under
Rule 608(b), a witness may be asked about specific instances of conduct that are
probative of a witness's character for truthfulness or untruthfulness. The rule
does not explain how to determine if an act is probative of truthfulness.
Our prior decisions have held a wide variety of conduct to be probative of
the witness's truthfulness: providing false information to a police officer;
intentionally failing to file tax returns; and misrepresenting financial information to
obtain a loan. In contrast, our courts have prohibited questioning about some
acts because they are not probative of truthfulness: acts of violence; instances
of drug use; driving under the influence of drugs; and bigamy.
This court has never considered whether an act of shoplifting is probative
of truthfulness or untruthfulness under Rule 608(b). A thorough review of state
and federal case law indicates that the law is not well-settled. A majority of
federal courts and some state courts have held that acts of theft are not probative
of truthfulness or do not involve dishonesty. In contrast, a number of courts have
concluded that theft is probative of truthfulness or dishonesty.
These cases can be grouped into three categories, based on their view of
the definition of truthfulness or dishonesty: broad, middle, and narrow. The
broad approach would allow testimony about instances of weak or bad character
as probative of veracity. This approach improperly subjects a witness to
questioning about almost any event in her past. Almost no modern decisions
adopt this view.
In contrast, the narrow approach requires the act to have an affirmative
element of false statement or deception, limiting the inquiry to acts such as
perjury, false statement, criminal fraud, embezzlement, or false pretense. A
majority of federal courts take this view. We decline to follow these courts,
however, because their holdings create an unduly narrow category of acts that
reflect on one's character for truthfulness.
We are most persuaded by the middle approach, which incorporates the
narrow view but would also permit questioning about conduct that indicates a
willingness to gain a personal advantage by dishonest means, including by taking
from others in violation of their rights or by encouraging dishonest behavior in
others. For example, in State v. Voorhees, the Columbia Court of Appeals held
that persuading a witness to lie on the stand, that is, suborning perjury,
constituted a proper focus of questioning on cross-examination under Rule
608(b).
Common experience suggests that a person who takes the property of
another for her own benefit is acting in an untruthful or dishonest way. Such
behavior reflects on one's truthfulness because a person who stole from another
may be more inclined to obtain an advantage for herself by giving false
testimony. Therefore, we hold that shoplifting is a specific instance of conduct
that is probative of truthfulness pursuant to Rule 608(b).
Because the trial court incorrectly interpreted Rule 608(b), we hold that the
trial court abused its discretion in finding defense counsel's question improper.
Reversed.
PT: SELECTED ANSWER 1
MEMORANDUM
TO: Andrew Solmark, Assistant District Attorney
FROM: Applicant
DATE: July 30, 2019
RE: State v. Martin, Admissibility of Evidence
I. Introduction
In this case, Bernice Martin was charged with two counts of identity theft, for the
use of a name and Social Security number acquired while employed by Fast
Com. With the information, she attempted to open several charge accounts, in
one case successfully. On that account, she charged almost $5,000 worth of
goods. This memorandum addresses whether three incidents of prior misconduct
will be admissible either as substantive evidence under Rule CEC Rule 404
and/or for impeachment purposes under CEC Rule 608. In the first incident, Ms.
Martin gave false information to a police officer when stopped for a broken tail
light. In the second incident, Ms. Martin was publicly intoxicated and shouted at a
police officer. And finally, in the third incident, Ms. Martin called the victim of this
case and threatened her to persuade her from testifying at trial.
II. Can the evidence be admitted as substantive evidence?
"CRE 404(b)(1) prohibits the admission of prior bad acts to establish an
individual's character or propensity to commit a crime. Rule 404(b)(2) does
permit, however, the admission of prior bad acts 'for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." State v. Landreau (Columbia S. Ct. 2011). This
list of purposes is not exhaustive, but rather provides a starting point. Id. The key
inquiry is "whether the evidence has relevance for some purpose other than as
proof of propensity." Id. To make this determination, a court will consider "1) the
degree of similarity to charged crime and 2) the temporal relationship of the other
acts." Id.
Traffic Stop
Three months ago, a police officer stopped Ms. Martin for a broken tail light.
Transcript of Pretrial Hearing. Ms. Martin gave the officer a different name and
driver's license than her own. Id. Ms. Martin's license had expired. Id. In this
case, Ms. Martin is claiming that "this entire case is the result of a computer error
at the two stores," in which "[t]he stores mixed up the names and social security
numbers of Ms. Martinez and Ms. Martin. Id. She further claims that she "was
trying to open accounts in her own name and had entirely innocent intentions."
Notably, Bernice Martin, the defendant, and Bernecia Martinez, the victim, do
have extremely similar names and their social security numbers are identical with
the exception of two numbers. Summary of Expected Testimony. Thus, the
theory asserted by the defense does, at first glance, appear plausible.
Thus, our strongest argument is that Ms. Martin's conduct is relevant to show
intent or absence of mistake. In Landreau, the Columbia Supreme Court
explained that "specific acts can be the basis for inferring that the defendant has
a mental state that is inconsistent with innocence."
Similarity to the Charged Crime
Our biggest challenge in arguing that Ms. Martin's prior conduct at the police stop
is relevant to showing intent or absence of mistake is establishing the similarity
between her conduct then and the conduct that she has been presently charged
with. While, "[t]he other bad act need not be identical to the crime charged," it
must be "sufficiently similar to permit a reasonable inference of knowledge or
intent." Landreau. In Landreau, the defendant was charged with passing a series
of bad checks. She claimed that "she did not know that [the] checks would
bounce and that she had had no intention to defraud the bank." Id. The court
ruled that it was permissible to rebut her claims with evidence of false statements
on a mortgage application, which the court concluded "indicate[d] an instance of
deception to obtain a financial advantage for herself." The defendant argued that
the two incidents were not similar because "a mortgage application is different
from opening a bank account." Id. But, the court found that the prior act was
"probative of her willingness to deceive so as to secure money from a financial
institution." Similarly, in State v. Vargas, the court found that there was "no abuse
of discretion in admitting evidence of prior fraudulent transactions to rebut the
claim that the defendant has been duped into joining the charged transactions."
Likewise, in State v. Rodgers, the court found that evidence of prior importation
of drugs was admissible to rebut the defendant's claim that he was an innocent
participant in the charged importation.
In our case, Ms. Martin is charged with identity theft. She acquired the name and
Social Security number (SSN) of another person, Ms. Martinez, from her former
job at FastCom. She used the information to try to, and in one case successfully,
open charge accounts at several stores. Memorandum from Andrew Solmark. On
one account, she charged nearly $5,000 worth of goods. Summary of Expected
Testimony. Previously, she presented false evidence to the police. The defense
argued at the pretrial hearing that the "traffic stop was just a mistake." Transcript
of Pretrial Hearing. Yet, the purpose of rule 404 is to admit such evidence when a
defendant has made multiple "mistakes" that are sufficiently similar, to illustrate
that the conduct at issue was not in fact a mistake, but rather is intentional. In
both this instance and the prior instance, Ms. Martin presented herself as
someone other than herself. However, I am not certain that this will be enough to
convince a court that these acts are sufficiently similar. Unlike in Landreau
and Vargas, the prior conduct here does not show a willingness to deceive for
the same purpose for which she is charged. She stole someone else's identity to
open charge accounts. By contrast, in the previous instance, she offered her
sister's name and driver's license because hers had expired, presumably to avoid
getting a ticket. Though the prior act does show her willingness to deceive,
which a court may find sufficient. However, in all of the cases discussed
in Landreau, as well as in Landreau itself, the prior act and the charged crime
had similarly beyond the baseline willingness to deceive. Therefore, I think, on
balance, it is unlikely that a court will find the two acts here sufficiently similar.
Temporal Relationship
If we can establish that this evidence is relevant for a purpose other than as proof
of propensity and that it is similar to the charged crime, we should have no
difficulty establishing the temporal relationship between this act and the charged
crime. In Landreau, the court found that a falsified mortgage application from two
years before the events in this case was "sufficiently close in time to the charges
in [that] case." Here, the conduct occurred only three months ago. Therefore,
there is sufficient temporal relationship between the acts.
Conclusion
If the court finds that Ms. Martin's prior conduct is sufficiently similar to that which
is charged, then this incident will be admissible as substantive evidence. In the
event that it is not admissible as substantive evidence, which I believe is more
likely, it will be admissible for impeachment purposes (see below).
Public Intoxication
Two months ago, Ms. Martin was stopped on a sidewalk, where she was "visibly
intoxicated, barely able to stand, with a strong smell of alcohol on her breath."
Transcript of Pretrial Hearing. "She started to shout at the officer, but after a
warning, she walked away and hailed a cab." Id.
I think it will particularly difficult for us to establish that this conduct is relevant for
some other purposes other than as proof of propensity, or general bad character.
Similarity to the Charged Crime
The charged crime deals with identity theft, misrepresentation, deceit, and lying.
By contrast, this prior conduct deals with generally rowdiness and rudeness, but
there is no suggestion that during this incident Ms. Martin lied to or deceived
anyone. While being drunk to the point that you cannot stand is typically
considered bad character, it is not probative of whether Ms. Martin committed
identity theft. In fact, in Landreau, the court specifically noted that "acts of
violence or of intoxication are not sufficiently similar to the crime of passing bad
checks to permit any inference of knowledge or intent." Therefore, I think it is
doubtful that this incident will be admissible substantially.
Temporal Relationship
If we can establish that this evidence is relevant for a purpose other than as proof
of propensity and that it is similar to the charged crime, we should have no
difficulty establishing the temporal relationship between this act and the charged
crime. In Landreau, the court found that a falsified mortgage application from two
years before the events in this case was "sufficiently close in time to the charges
in [that] case." Here, the conduct occurred only two months ago. Therefore, there
is sufficient temporal relationship between the acts.
Conclusion
Because of the dissimilarity between this incident and the charged crime, it is
unlikely that it will be admissible substantively.
Conversation with Bernecia Martinez
Two weeks ago, a woman who identified herself as Bernice called Ms. Martinez,
the victim in this case. Transcript of Pretrial Hearing. "The caller threatened Ms.
Martinez by saying that, if she testified at the trial in this case, she would regret
it." Id. Furthermore, the caller said that "it would be better if Ms. Martinez would
testify that she gave 'Bernice' permission to open those accounts.
Our strongest argument here would be to assert that this incident is proof of
intent or absence of mistake.
Similarity to the Charged Crime
Here, Ms. Martin has been charged with identity theft. The prior bad act is a
threatening phone call in which Ms. Martin threatened a witness and encouraged
her to testify a certain way. On the surface, these incidents do not appear to be
similar. The threatening phone call, unlike the prior acts in
Landreau and Vargas did, does not illustrate that Ms. Martin is willing to deceive
for pecuniary gain. Rather, it indicates that perhaps she is violent and
threatening, which is not a valid reason to admit evidence under Rule 404. See
Landreau ("acts of violence . . . are not sufficiently similar to the crime of passing
bad checks to permit any inference of knowledge or intent"). Our strongest
argument is that the telephone conversation illustrates that Ms. Martin is willing to
deceive the court by tampering with a witness and encouraging the witness to
provide false testimony. However, it is unclear whether a court would find
sufficient similarity because although both actions illustrate a willingness to
deceive, the deception is for different purposes, which as mentioned above is
dissimilar to all of the cases discussed in Landreau, as well as the facts
of Landreau itself. Alternatively, we could point to the fact that the comment that
"it would be better if Ms. Martinez would testify that she gave "Bernice"
permission to open those accounts" is directly contrary to the defense's position
that there was a computer error that resulted in a mixed up with the names and
social security numbers. Thus, this statement does permit a reasonable inference
that Ms. Martin did not accidentally use Ms. Martinez's information. Still due to
the dissimilarity of the two incidences, I am not confident how the court would
rule on this issue. It is, of course, possible that a court would admit the statement
suggesting what Ms. Martinez should testify about, while excluding the testimony
about the threat against testifying all together.
Temporal Relationship
If we can establish that this evidence is relevant for a purpose other than as proof
of propensity and that it is similar to the charged crime, we should have no
difficulty establishing the temporal relationship between this act and the charged
crime. In Landreau, the court found that a falsified mortgage application from two
years before the events in this case was "sufficiently close in time to the charges
in [that] case." Here, the conduct occurred only two weeks ago. Therefore, there
is sufficient temporal relationship between the acts.
Conclusion
Because of the dissimilarity between this incident and the charged crime, it is
unlikely that it will be admissible substantively. In the event that it is not
admissible as substantive evidence, it will be admissible for impeachment
purposes (see below).
III. Can the evidence be admitted for impeachment purposes?
When "a witness takes the stand and testifies, she puts her credibility in issue.
Thus, the opposing party is entitled to impeach the witness's credibility. Under
Rule 608(b), a witness may be asked about specific instances of conduct that are
probative of a witness's character for truthfulness or untruthfulness." State v.
Proctor (Columbia S. Ct. 2008). In Proctor, the Columbia Supreme Court adopted
the "middle approach" with regard to what is and is not probative of a witness's
character for truthfulness. According to this approach, "acts that have an
affirmative element of false statement or deception," as well as "conduct that
indicates a willingness to gain a personal advantage by dishonest means" is
deemed probative of truthfulness. Id.
Traffic Stop
In Proctor, the court indicated that in prior decisions, the Columbia Supreme
Court has held that providing false information to a police officer is probative of
truthfulness. Here, Ms. Martin, when pulled over for a broken head light, gave the
officer a different name and driver's license than her own. She providing false
information to a police officer.
Thus, this evidence will be admissible under Rule 608(b).
Public Intoxication
In Proctor, the court indicated that Columbia courts have prohibited questioning
about acts of violence, instances of drug use, and driving under the influence
because they are not probative of truthfulness. Ms. Martin's conduct with regard
to public intoxication and shouting at a police officer fairly clearly falls into the
categories of drug use and acts of violence.
Thus, this evidence will be inadmissible under Rule 608(b).
Conversation with Bernecia Martinez
The defense will likely argue here that the conversation should not be admitted
because the court in Proctor specifically indicated that evidence of acts of
violence is not probative of truthfulness. And acts of violence and threatening
acts are similar. However, the conduct at issue is extremely similar to the
conduct that was found to be admissible under CEC 608 in State v. Voorhees. In
Voorhees, the Columbia Court of Appeal found that "persuading a witness to lie
on the stand, that is, suborning perjury, constituted a proper focus of questioning
on cross-examination under Rule 608(b). Therefore, we should argue that Ms.
Martin's threats to Ms. Martinez were intended to cause Ms. Martinez to lie on the
stand. The only potential problem with this argument is that it assumes what we
are trying to prove - that Ms. Martinez didn't give Bernice permission to open
those accounts. Still, I think this is relatively easy to establish, particularly when
combined with the fact that it contradicts the defense’s contention that the mix
up was due to computer error and that Ms. Martin was trying to open accounts in
her own name.
Thus, this evidence will likely be admissible under Rule 608(b).
IV. Conclusion
Testimony regarding the traffic stop and the conversation with Bernecia Martinez
may be admissible substantively, if the court finds that the prior acts are
substantially similar to the charged crime. I think it is unlikely that testimony
regarding the traffic stop will be admissible, but with regard to the conversation
with Ms. Martinez, it is a closer call. Regardless though, both incidents will be
admissible for impeachment purposes. Testimony regarding Ms. Martin's public
intoxication, by contrast, will not be admissible for any purpose.
PT: SELECTED ANSWER 2
From: Applicant
To: Andrew Solmark, Assistant District Attorney
Date: July 30, 2019
RE: State v. Martin
Question Presented:
You have asked me to prepare a memorandum analyzing whether we can admit
any of the following incidents against Bernice Martin as either substantive
evidence under Columbia Rule of Evidence 404 or for impeachment under
Columbia Rules of Evidence 608. The three incidents are described below:
1) Bernice Martin was pulled over by a police officer three months ago for a
broken tail light and gave the officer a different name and driver's license than
her own.
2) Two months ago, while visibly intoxicated, Ms. Martin started to shout at an
officer
3) Two weeks ago, Bernecia Martinez received a call from someone who
identified herself as Bernice and threatened her to not testify at trial.
Discussion:
1. Whether the Incidents Are Admissible as Substantive Evidence Under
Columbia Rule of Evidence 404
Prior bad acts are prohibited from being admitted to establish an individual
character's propensity to commit a crime in order to show that on a particular
occasion the person acted in accordance with the character. CRE
404(b)(1). However, prior bad acts are permitted for other purposes such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. CRE 404(b)(2). In determining the admissibility of evidence
under Rule 404(b), a court must determine whether the evidence has relevance
for some purpose other than proof of propensity. State v. Landreau (Supreme
Court of Columbia 2011). The prior list is not exhaustive. Id. In order to
determine whether evidence has some relevance for another purpose, the court
considers 1) the degree of similarity to the charged crime, and 2) the temporal
relationship of the other acts. Id. In order to introduce the incidents as
substantive evidence under Rule 404, it must be determined whether they meet
these factors.
a. THE INCIDENT WITH THE DRIVER'S LICENSE CAN BE ADMITTED AS
SUBSTANTIVE EVIDENCE
In the first incident, Bernice gave a police officer who had stopped her for a
broken tail light a different name and driver's license other than her own. It
turned out that Ms. Martin's own license had expired and she used the license of
her sister Beverly Martin. In State v. Landreau, the court determined that specific
acts can be the basis for inferring that the defendant had a mental state that is
inconsistent with innocence. State v. Landreau. In Landreau, evidence that a
woman had provided a bank with a fake name, social security number, and date
of birth was admissible as substantive evidence against a defendant who had
opened checking accounts fraudulently under another's name. Id. The court
determined that both occasions indicated an instance of deception to obtain a
financial advantage for herself. Id. This is similar to the present case where
Bernice used deception by fraudulently stealing Ms. Martinez's social security
number and opening charge accounts at several stores. The evidence we are
using in the present case is that Ms. Martin attempted to use deception to get out
of a traffic ticket by using her sister's identification. Although this prior act does
not indicate a financial advantage like in Landreau, it does demonstrate that Ms.
Martin was willing to use deception to obtain an advantage for herself. In this
case, the use of her sister's driver's license can be used to demonstrate an
absence of mistake, because the evidence could rebut an innocent involvement
defense. Ms. Martin's defense rests on the fact that the stores mixed up the
names and that Ms. Martin was trying to open accounts in her own name and
had entirely innocent intentions.
In order to see if the evidence is admissible to rebut a defense of innocent
involvement, we must see if there is a 1) degree of similarity to the charged crime
and 2) the temporal relationship of the other act. The prior bad act need not be
identical to the crime charged so long as it is sufficiently similar to permit a
reasonable inference of knowledge or intent. State v. Landreau. In this case, the
acts are sufficiently similar because they both demonstrate a willingness to
deceive in order to gain an advantage. In the traffic stop incident, Ms. Martin was
willing to steal her sister's identity in order to get out of a traffic ticket. Both Ms.
Martin and her sister Beverly Martin had similar names. Seeing the similarity in
their names, Ms. Martin took advantage of that information in order to use get out
of the ticket. In the present case, Ms. Martin stole the identity of Ms. Martinez in
order to open charge accounts and purchase items for herself. In this case, Ms.
Martin saw the similarity in both the names (Bernice Martin v. Bernecia Martinez)
and social security numbers (989-21-0994 vs. 909-22-0094), and decided to take
advantage of that in order to gain an advantage. Therefore, the incidents are
sufficiently similar because they both involve identity theft using similar
names. Also, the items are related temporally because the traffic stop only
occurred three months ago. That is relatively recent, so there is a close temporal
relationship. Furthermore, the Supreme Court of Columbia has held in multiple
prior decisions that similar acts can be used to rebut innocent involvement. See
State v. Rodgers; State v. Vargas (no abuse of discretion in admitting evidence
of prior fraudulent transactions to rebut the claim that defendant had been duped
into joining the charged transactions).
However, it could be argued that the prior incident was in itself an innocent
mistake, which Ms. Dacosta This would negate its probative value as an
absence of mistake because if both incidents were a mistake, then the prior
incident is in itself irrelevant. Furthermore, it could be argued that the incidents
are incredibly different. Lying in a traffic stop is different than identity theft using
credit cards accounts. However, this is unlikely to be a strong argument because
both incidents are at their core, identity theft, albeit on different levels and in
different manners.
Therefore, because the acts are sufficiently similar and close temporally, the
evidence of the traffic stop demonstrates an absence of mistake because it
rebuts an innocent involvement defense. This makes it admissible as
substantive evidence under Rule 404(b).
b. THE INCIDENT OUTSIDE BLUE MOON BAR IS NOT ADMISSIBLE AS
SUBSTANTIVE EVIDENCE
In the second incident, Ms. Martin appeared intoxicated and was barely able to
stand when she started to shout at an officer. After receiving a warning, she
walked away. In Landreau, the court did not allow evidence of Landreau being
arrested for assault in a bar fight as substantive evidence. Landreau. The court
found that acts of intoxication and violence are not sufficiently similar to her crime
of passing bad checks to permit any inference of knowledge or intent. Id. This is
similar to the present case, where Ms. Martin's intoxication bears no similarity to
her charged crime of identity theft. Although the incident was relatively recent,
only two months ago, this does not overcome the fact that it is vastly different
than her charged crime. As a result, it is not sufficiently similar and cannot be
introduced as substantive evidence under Rule 404(b) and there is no good faith
argument to do so.
c. THE INCIDENT REGARDING THE THREATS TO MS. MARTINEZ ARE
NOT ADMISSIBLE AS SUBSTANTIVE EVIDENCE
In the third incident, Ms. Martin allegedly threatened Ms. Martinez over the
phone in an attempt to get her to testify falsely or not testify at all. In order to see
if this is admissible as substantive evidence we need to see if it is 1) sufficiently
similar and 2) close in temporal relation. It could be argued that they are
sufficiently similar because both of them involve dishonesty. In the first case, Ms.
Martin used dishonesty in order to open fake accounts in Ms. Martinez's
name. In the present incident, Ms. Martin is trying to encourage dishonest
behavior. Both of these actions were to gain her own advantage. Furthermore,
because the second incident was two weeks ago, the incidents were close in
time.
However, there is a strong counter argument to this argument. While both
instances demonstrate her willingness to deceive, they are incredibly different. In
the first act, Ms. Martin is participating in identity theft. In the prior act, Ms. Martin
is using threats to suborn perjury. Furthermore, this incident is not a "prior act"
because it occurred after the identity theft had occurred. Therefore, while there
is an argument that the acts are sufficiently similar, it is more likely that they are
too different to properly be introduced as substantive evidence. As a result, the
evidence of the third incident is not admissible under Rule 404(b).
2. Whether the Incidents are Admissible For Impeachment Under Columbia Rule
of Evidence 608
If a witness takes the stand and testifies, she puts her credibility in issue entitling
the opposing party to impeach the witness's credibility. State v. Proctor
(Supreme Court of Columbia 2008). A witness may be asked about specific
instances of conduct that are probative of a witness's character for truthfulness or
untruthfulness. CRE 608.
a. THE INCIDENT WITH THE TRAFFIC STOP IS ADMISSIBLE FOR
IMPEACHMENT
Prior Supreme Court of Columbia decisions have established a wide variety of
conduct to be probative of a witness's truthfulness. State v. Proctor This
includes providing false information to a police officer. Id. In this incident, Ms.
Martin gave the officer a different name and driver's license than her own,
because her own license was expired. This incident demonstrates an incident of
Ms. Martin providing false information to a police officer. Because the Supreme
Court of Columbia has determined this conduct to be probative of a witness's
truthfulness, it can be used against Ms. Martin as impeachment evidence.
B. THE INCIDENT OUTSIDE OF BLUE MOON BAR IS INADMISSIBLE FOR
IMPEACHMENT
Prior Supreme Court of Columbia decisions have established a variety of conduct
to inherently not be probative of a witness's truthfulness. These acts include
instances of violence, drug use, and driving under the influence of drugs. The
current incident involves Ms. Martin being visibly intoxicated with the strong smell
of alcohol while yelling at a police officer. Although this is not the same as drug
use, it has the same effect. Being incredibly intoxicated does not speak to a
person's truthfulness or untruthfulness in the same way that drug use does
not. Therefore, this incident cannot be used to impeach Ms. Martin.
C. THE INCIDENT REGARDING THE THREATS TO MS. MARTINEZ IS
ADMISSIBLE
In State v. Proctor, a court determined that a prior act of shoplifting was
admissible for impeachment because it demonstrates a willingness to gain a
personal advantage by dishonest means, including by taking from others in
violation of their rights or by encouraging dishonest behavior in others. State v.
Proctor. Common experience suggests that a person who takes the property of
another for her own benefit is acting in an untruthful or dishonest way. Id. This is
relevant to the present case because Ms. Martin attempted to gain a personal
advantage through dishonest means by threatening Ms. Martinez to not
testify. She told Ms. Martinez that if she testified at the trial in this case "she
would regret it." She also said that it would be better if Ms. Martinez would testify
that she gave "Bernice" permission to open those accounts. This phone number
was traced to Ms. Martin's Fast Com phone account. By threatening Ms.
Martinez to not testify or alternatively lie that she gave Bernice permission, Ms.
Martin tried to gain a personal advantage through dishonest means. In State v.
Voorhees, the Columbia Court of Appeal held that persuading a witness to lie on
the stand constitutes a proper focus of questioning on cross-examination under
Rule 608. Similarly, Ms. Martin telling Ms. Martinez to lie that she gave Ms.
Martin permission is tantamount to suborning perjury. As a result, it is properly
admissible under Rule 608 for impeachment because it is highly probative of her
character for truthfulness and is the proper focus of questioning on cross-
examination.
3. Conclusion
In conclusion, the first evidence involving the traffic stop is admissible as
substantive evidence under Rule 404(b) because it tends to rebut Ms. Martin's
defense of innocent involvement. The other two incidents are inadmissible
because they are not sufficiently similar. In regards to impeachment, the incident
involving the traffic stop and the threatening phone call to Ms. Martinez are both
admissible because they demonstrate her character for truthfulness and
willingness to encourage dishonest behavior in others. Finally, the incident
outside of the Blue Moon Bar is inadmissible because drunken conduct has no
implication on Ms. Martin’s character for truthfulness.
