Miller is tried for armed robbery of the First Bank of City. The prosecutor offers the testimony of a bartender that when he saw the money in Miller's wallet, he said "You must have robbed a bank," to which Miller made no reply. This evidence is A. admissible to prove that Miller's conduct caused the bartender to believe that Miller robbed the bank. B. admissible as a statement made in the presence of the defendant. C. inadmissible, because it would violate Miller's privilege against self-incrimination. D. inadmissible, because Miller had no reason to respond to the bartender's statement.

D

<!--[if gte mso 9]> Normal 0 false false false MicrosoftInternetExplorer4 <!-- /* Font Definitions */ @font-face {font-family:"Adobe Song Std L"; panose-1:0 0 0 0 0 0 0 0 0 0; mso-font-charset:128; mso-generic-font-family:roman; mso-font-format:other; mso-font-pitch:variable; mso-font-signature:519 135200768 16 0 393223 0;} @font-face {font-family:"\@Adobe Song Std L"; panose-1:0 0 0 0 0 0 0 0 0 0; mso-font-charset:128; mso-generic-font-family:roman; mso-font-format:other; mso-font-pitch:variable; mso-font-signature:519 135200768 16 0 393223 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0cm; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman";} p {mso-margin-top-alt:auto; margin-right:0cm; mso-margin-bottom-alt:auto; margin-left:0cm; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman";} @page Section1 {size:595.3pt 841.9pt; margin:2.0cm 42.5pt 2.0cm 3.0cm; mso-header-margin:36.0pt; mso-footer-margin:36.0pt; mso-paper-source:0;} div.Section1 {page:Section1;} --> <!--[if gte mso 10]> There is a generally accepted rule of human conduct which holds that a person will usually try to repel an imputation or claim that has no foundation in fact. The rule serves as the basis for the generally recognized principle that, subject to various qualifications, a person's silence may be construed for evidentiary purposes as a tacit admission of the facts stated where a statement is made in his presence in regard to facts affecting his rights, and he makes no reply.  

Despite the general rule of admissibility, it is frequently held that evidence of a party's silence cannot be introduced as proof of an admission unless the following conditions are shown to have existed: (1) the statement in question was made in the party's presence and hearing, (2) the party was capable of understanding the meaning of the statement,  (3) the party had sufficient knowledge of the facts embraced in the statement to reply thereto,  (4) the party was at liberty to deny the statement or otherwise respond to it  (5) the statement was made under such circumstances as would naturally call for a reply,  and (6) the statement was made by a person normally entitled to a reply. In other words, there must be a specific showing that the silent party adopted the statement by failing to refute it.

After all, no one is required to respond to every negative or joking comment that is made about him. And there may be other factors in a given situation, apart from guilt or innocence with respect to the particular accusation, that might explain why a person did not choose to respond.

 

On the other hand, some accusations may be of such a nature, or come from such a source, that it may be natural to expect an innocent person to protest when such an accusation is made to his face if there are no other explanations for his silence.

Compare: Admission by Silence occurred during Clinton’s press conference : a reporter asked the President two important questions with such clarity that no wiggle room was left. "Is Monica Lewinsky's account to the events accurate and truthful? Did you lie?" Bill Clinton did not answer either question  

 

SO the ans would be A or D.
To me it appeared as a mere joke, but then regarding MBE law (FRE) an accusation to which a RPP would definitely reply.

In these facts I would go for:
D

(a) wouldn't be relevant

best answer--D

Congratulations everyone!

<!--[if gte mso 9]> Normal 0 false false false MicrosoftInternetExplorer4 <!-- /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman";} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.Section1 {page:Section1;} --> <!--[if gte mso 10]> The correct answer is D. Miller had no reason to respond to the bartender’s statement and so his lack of response does not constitute an admission. Evidence of Miller’s lack of response does not constitute a nonverbal admission, because it was not intended by Miller to be an assertion or adoption of the bartender’s statement. Answer A is incorrect because the bartender’s subjective belief that Miller robbed the bank is irrelevant and prejudicial to the issue of whether Miller did rob the bank. Proof of money in Miller’s wallet may have led the bartender to believe Miller had robbed the bank, but the bartender’s belief is irrelevant and will be found inadmissible. Answer B is incorrect because the mere fact that a statement was made by the bartender in the presence of the defendant does not mean Miller adopted the statement or that his silence was an assertion of the truth of the statement. Unless Miller adopts the statement, which he did not in this question, or his silence is considered an admission, which it is not, the statement is inadmissible as proof that Miller committed the armed robbery. Answer C is incorrect because the privilege against self-incrimination does not extend to statements made to bartenders, but rather only to statements made to law enforcement officials. Unless Miller adopted the bartender’s statement as his own, Miller’s lack of response to a statement made by the bartender is inadmissible to prove his guilt of armed robbery.
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