I have my clicker.
1. True
2. Correct
3. Both
0%
Bo
th
ec
t
0%
Co
rr
Tr
ue
0%
1
Evidence of bad acts is admissible under Rule 404(b) only
if it is offered for one of the KIPPOMIA purposes (to show
knowledge, intent, plan, preparation, opportunity, motive,
identity, or absence of mistake.)
1. True
2. False
0%
Fa
ls
e
Tr
ue
0%
2
If evidence of bad acts has significant probative value in
proving one of the KIPPOMIA purposes such as motive or
intent, then it is admissible per se.
0 of 30
0%
Fa
ls
e
0%
Tr
ue
1. True
2. False
10
3
UNITED STATES V. CUNNINGHAM, P. 125
Seventh Circuit, 1996 (Posner, J.)
Constance Cunningham was accused of stealing
Demerol from the hospital where she worked.
She was one of five nurses who had access.
She tested positive for Demerol on a urine test.
The trial judge admitted evidence that four years
earlier Cunningham was a Demerol addict, that
she had her license suspended for Demerol
theft, and that she falsified Demerol test results.
4
In Cunningham, the strongest argument for
admitting the evidence was -1. It was character
evidence that fell
under the motive
exception.
2. It was not character
evidence when used
to show motive.
3. Other.
Two types of motive evidence:
• 1. Cases in which the prior crime and the
charged crime are motivated by the same
desire or compulsion.
(Example: Cunningham)
• 2. Cases in which a prior crime
committed with a different motive causes
the motive for the charged crime to arise.
(Example: killing a witness to a robbery)
Possible examples of same-motive
evidence
•
•
•
•
•
•
•
Addiction (Posner)
Child molestation (Posner)
Indecent exposure
“Firebug” activity (Posner)
Cruelty to animals?
Pointless vandalism?
Excessive greed?
Defendant is accused of cruelty to animals in a
case in which he allegedly tortured animals for
pleasure. Evidence is offered that he previously
was convicted of cruelty to animals in a case
arising from his role in staging dog fights. Under
Cunningham, the evidence would be –
1. Admissible
2. Inadmissible
3. It depends
Defendant is accused of vandalizing a stranger’s
parked car by throwing rocks through its windows.
He has an alibi defense. Evidence is offered that
(1) he did the same thing to another stranger’s car
the day before, and (2) two years before, he
caused serious injury by throwing a rock through
the front window of a stranger’s car while it was
being driven on the freeway.
1. Both are admissible.
2. Neither is admissible
3. Only one is
admissible.
9
A CEO is accused of predating options in
order to increase his already huge
compensation. To prove motive, evidence
is offered of other acts of excessive greed.
1. Admissible
2. Not admissible
3. It depends
Prerequisites for admission of other crime
evidence:
• It is offered for a proper non-character purpose
• It does not cause too much prejudice, confusion
or waste of time (the danger that it will be used
as character evidence does not substantially
outweigh its value for the proper purpose)
• There is sufficient evidence that defendant was
guilty of the other crime
Tucker v. State, p. 128
Supreme Court of Nevada, 1966
In Tucker v. State, the Nevada Supreme
Court reversed because -1. No proper purpose
2. Proper purpose
outweighed by
danger of prejudice
3. Insufficient proof that
the defendant
committed the prior
crime
Under Tucker v. State, the prosecution must
prove the other crime by -1. Evidence sufficient
to support a verdict
2. A preponderance of
the evidence
3. Plain, clear and
convincing evidence
Huddleston v. United States, p. 129
United States Supreme Court, 1988
15
Under Huddleston, other crime evidence is
admissible only if the prosecution proves
with ____________that the defendant
committed the other crime.
1. Evidence sufficient
to support a verdict
2. A preponderance of
the evidence
3. Plain, clear and
convincing evidence
Under Huddleston, the question whether
the other crime was committed by the
defendant is -1. A Rule 104(a)
question
2. A Rule 104(b)
question
3. A Rule 403
question
Huddleston, p. 133
“In determining whether the Government has
introduced sufficient evidence to meet Rule
104(b), the trial court neither weighs credibility
nor makes a finding that the Government has
proved the conditional fact by a preponderance
of the evidence. The court simply examines all
the evidence in the case and decides whether
the jury could reasonably find the conditional
fact — here, that the televisions were stolen —
by a preponderance of the evidence. “
In a jury trial, the judge decides questions of
law, and the jury decides questions of fact.
1. True
2. False
3. It depends
19
Distinguishing 104(a) questions from
104(b) questions
These rules apply when it is necessary to
establish a preliminary fact in order to lay the
foundation for evidence. Unless the preliminary
fact is true, the evidence is not admissible.
Example: E (a confession) is not admissible
unless PF (giving Miranda warnings) is shown to
be true.
20
PF= Preliminary fact upon which
admissibility of evidence depends.
• The existence of the PF is a 104(b) question
when the basis for objection is that because the
PF has not been established, therefore the
proffered evidence is not relevant.
• It’s a 104(a) question when the basis for
objection is that because the PF has not been
established, therefore the proffered evidence
should be excluded for another reason.
21
Examples of 104(a) questions
• Were Miranda warnings given?
• Did the defendant consent to search?
• Excited utterance – was declarant
excited?
• Attorney-client privilege – was there a sign
under the jailhouse phone saying “calls
are monitored?”
22
Examples of 104(b) questions
• Was the defendant driving the car seen
speeding blocks away from the accident?
• Is that the defendant’s signature on the
contract?
• Did the threatening email come from the
defendant?
23
Policy approach
If the jury would be prejudiced by the challenged
evidence even if it decided that the PF did not
exist, then it’s a 104(a) question. Otherwise, it’s
a 104(b) question.
Examples of situations where the jury might be
prejudiced: confessions, attorney-client
privilege, hearsay
24
Restyled Rules 104(a)-(b)
Rule 104. Preliminary Questions
(a) In General. The court must decide any preliminary
question about whether a witness is qualified, a privilege
exists, or evidence is admissible. In so deciding, the
court is not bound by evidence rules, except those on
privilege.
(b) Relevance That Depends on a Fact. When the
relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding
that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be
introduced later.
25
Under Huddleston, evidence of uncharged
misconduct is not admissible unless the judge is
persuaded that the accused did in fact commit that
misconduct.
1. True.
2. False.
28
Should judges screen out prior crimes
instead of letting the jury decide whether
the accused was guilty of them?
Continue ►
30
Some observers have argued that Huddleston is
unfair, because jurors might be prejudiced by
evidence of other offenses even if they don’t
believe the defendant was guilty of them. Do you
agree? (Discuss)
1. Yes
2. No.
31
After Huddleston, suppose that a prior crime is
offered to show motive. Objection, prejudice far
outweighs probative value. In assessing prejudice,
the judge may take into account her own factual
doubts about whether defendant was guilty of the
prior crime. (See fn. 6).
1. True.
2. False.
32
Defendant is accused of robbing a bank while
wearing a Bugs Bunny costume. He was
previously tried for robbing another bank while
wearing a Bugs Bunny costume. He was acquitted
of the prior charge. The prosecution offers
eyewitness testimony that defendant committed
the earlier robbery. (Dowling, p. 134)
50%
50%
le
.
ib
In
ad
m
iss
Ad
m
iss
ib
le
1. Admissible
2. Inadmissible.
33
Perrin v. Anderson, p. 135
Tenth Circuit, 1986
Perrin was shot and killed by police officers who
came to his house during an investigation. His
survivors sued. The officers claimed that Perrin
attacked them and that they were acting in selfdefense. They offered testimony that Perrin had
attacked officers on other occasions.
34
First, consider FRE 404(a)(2).
It sets forth an exception to the ban on character
evidence for “evidence of a pertinent trait of
character of the alleged victim of the crime
offered by an accused.”
35
The Perrin court decided that 404(a)(2)
could not be the basis for admitting the
testimony about Perrin’s prior attacks
because1.
2.
3.
4.
specific acts are not
admissible
this is a civil case
the exception applies,
but 403 trumps
All of the above.
36
The Perrin court held that the exceptions in
404(a)(1)-(2) apply in civil cases based on
criminal conduct.
There was a change in the law after Perrin.
Fed. R. Evid. 404(a)(1)-(2) were amended
in 2006 to make it clear that those
exceptions to the ban on character
evidence apply only to criminal cases.
37
Did the Perrin court decide that evidence of
the victim’s prior attacks was admissible?
1. Yes
2. No
38
Why was the evidence admissible?
1. It was not
character
evidence
2. It was character
evidence that fell
under an
exception
39
Why wasn’t it character evidence?
1. It was KIPPOMIA
evidence
2. It was habit
evidence
3. Other
40
In Perrin, four officers testified about violent incidents (p.
138). The defendant also made an offer of proof that eight
other officers would testify about numerous other incidents.
The trial judge could take the offer of proof into account in
deciding whether Perrin’s violent reactions were habit even
if the 8 officers did not testify.
(See Rule 104(a)).
1. True
2. False
41
Perrin is an unusual case. More typical
examples of “habit” include:
•
•
•
•
•
workplace procedures
always warning patients
not blowing a whistle at a certain crossing
always stamping mail
always signaling a left turn
See excerpt, pp. 139-41
42
Questions – Character of Victim
Casebook, p. 139
43
1. D is charged with the murder of V. He asserts
self-defense. As evidence that V was the first
aggressor, D is entitled to introduce testimony
that V had a bad reputation for violence.
(See Rule 404)
1. True
2. False
44
2. Same case. D is entitled to put in evidence that
V previously shot someone in a fit of road rage.
1. True
2. False
45
3. Same case. D is entitled to put in evidence that
a week before the incident that caused V’s death,
V attacked D in a fit of road rage.
1. True
2. False
46
4. Same case. D is entitled to put in evidence that
a week before the incident that caused V’s death,
he heard that V shot someone in a fit of road rage.
1. True
2. False
47
5. Same case. After the judge has admitted
evidence of the bad reputation of V for violence,
prosecution evidence of the bad reputation of D for
violence becomes admissible, even if D has not
offered any evidence of D’s own good character.
1. True
2. False
48
Rule 404(a)(2)(B) provides that after the defendant
puts in evidence of the bad reputation of V for
violence, prosecution evidence of the bad
reputation of D for violence becomes admissible,
even if D has not offered any evidence of D’s own
good character.
Is this a wise rule?
49
Halloran v. Virginia Chemical, p. 142
(N.Y. 1977)
Plaintiff was injured when a can of freon exploded.
Issue: Did he heat the freon with an immersion coil or by
putting it in warm water?
Evidence: On prior occasions plaintiff heated freon with an
immersion coil
50
Objection, character attack!
What answer?
51
D is accused of murdering V with a freon coil booby trap.
His defense is mistaken identity. Evidence is offered that D
previously murdered another person the same way.
Objection, character evidence. The answer to the objection
is -1.
2.
3.
4.
It’s character evidence
that falls under an
exception
It’s 404(b) evidence
Both of the above
It’s habit evidence
52
• Hypo: Plaintiff is injured by a car that fell
off a jack. Evidence of his habitual use of
an immersion coil to heat freon is offered
to show he had careless habits and
therefore was more likely to be careless in
setting up the jack.
53
Admissible?
1. Yes
2. No
54
Notice question. Defendant is charged with
aggravated assault upon a victim in her
apartment. The prosecution offers evidence
that he broke a window to enter the
apartment. The defense claims that this is
other crime evidence and points out that no
notice was given.
Ad
m
le
0%
ib
iss
ib
le
0%
In
ad
m
iss
1. Admissible
2. Inadmissible
55
The end.
56
Cunningham re-argued.
Pretend that a case with the same facts as
Cunningham (p. 409) has arisen in the
Northern District of California. The
prosecution seeks to put in evidence of (1)
her prior conviction (2) suspension from
practice (3) falsifying other tests and (4)
her addiction. Left side: argue for
admission. Right side: argue against.
57
Group exercise.