Answer to Weekly Bar Question 02/25/08

(B) is the best response, because it correctly identifies the key to admissibility here - that the tape is legally relevant.  A piece of evidence is legally relevant if its probative value is not substantially outweighed by the possibility of unfair prejudice.  This is an answer that you would have to choose as a result of eliminating the other answers, because it is a "threshold" issue - every piece of evidence must be legally relevant in order to be admissible, but it also must meet other hurdles (e.g., it cannot be inadmissible hearsay or character evidence, it must be logically relevant, it must be unprivileged, etc.).  However, because the tape here will have a significant impact on the jury - it shows Mel Gibson drunk as a skunk - B is relevant, because there could be an issue of legal relevance.  However, the evidence would not be considered sufficiently inflammatory or misleading to be excluded due to legal relevance problems.  When you talk about excluding evidence on this basis, you're typically talking about severed limbs, gruesome photos, and the like.  Thus, since there is a legal relevance problem (even though the evidence would still be admissible), and none of the other answers are satisfactory, B is the best response. 

(A) is not the best response, because it does not correctly characterize the facts.Option A suggests that Mel Gibson's acts would be considered hearsay, but would be admissible nonetheless under the "admissions" hearsay exception.  Hearsay is an out-of-court statement offered to prove the truth of its assertion.  The problem here is that there's no assertion.  While conduct can be considered an admission if, from it, one can reasonably infer that the actor is conscious of his guilt, this is not the case here; Mel Gibson's conduct is non-assertive (i.e., not intended to communicate).Even under the somewhat different common law rule, Mel Gibson's conduct would not be considered an admission.  At common law, non-assertive conduct is considered hearsay only if it is offered to prove the actor's beliefs regarding a fact issue.  Here, the evidence isn't being offered to prove Mel Gibson knew he was blotto; it's being offered to prove that he was blotto.In any case, it's the lack of a hearsay assertion that makes Mel Gibson's conduct a non-admission.  Since option A doesn't recognize this, it's not the best response. 

(C) is not the best response, because the privilege against self-incrimination would not apply to these facts.The privilege against self-incrimination is a testimonial privilege; it only allows one the right not to testify as to incriminating matters.  Here, there's no testimony involved - the evidence being offered is an out-of-court videotape of Mel Gibson.  As a result, it is not covered by the privilege.Say the facts were different, and the prosecutor sought to question Gibson himself about his drunkenness.  Of course, Gibson, as a criminal defendant, could refuse to take the stand at all.  If he did take the stand in his own defense, he would have waived the privilege against self-incrimination, and he'd have to answer all relevant questions.In any case, since option C doesn't recognize that the privilege against self-incrimination is only a testimonial privilege, which would not apply to these facts, it's not the best response. 

(D) is not the best response, because it both misstates these facts and misstates the law.  D in fact states an ostensible rule of law that's a mishmash of ideas.  The "specific instances of conduct" part suggests character evidence is involved here.  However, the evidence here suggests that Mel Gibson was drunk on this occasion, not another one, so it's not character evidence.  The "extrinsic evidence" part suggests that Gibson is being impeached, and that there may be a collateral matter involved.  Gibson isn't being impeached - he isn't even testifying.  And not only is a collateral matter not involved, but Gibson's drunkenness shortly after arrest would be very strong evidence of a central issue - his drunk driving.  Since D does not apply the correct law or identify the facts correctly, it's not the best response.