11 - Other-Acts 404(b) Flashcards
Noncriminal Conduct 404(b)
Can be used to admit criminal acts, but not limited to crimes; includes “wrongs” and “acts”
Ex. D killed victim because he wanted to marry the victim’s wife, so proof of an affair (the other-act) may be admissible to establish motive and identity
A. Dissimilar acts B. Subsequent acts C. Offered by Accused D. Civil Cases E. Notice
A. Other-act doesn’t have to be “similar” to prove charged offense (but obviously relevant) ex. proof of an affair to prove motive/intent for a murder
B. Doesn’t have to occur prior to the charged offense. Ex. Robbery D threatens a witness a week after the crime -> show consciousness of guilt. or Ex. after robbery, uses victim’s credit cards -> motive
C. Accused may offer evidence under 404(b) in attempt to show that another person committed the charged crime
D. 404(b) applies to crim and civil
E. Advanced notice is requried
404(b) Application (3 steps)
- 401 - identify “material” (consequential) issue (other than character) that the evidence is being offered to prove (i.e., identity of the perp, mens rea, corpus delicti, etc)
- 403 - balance the probative value of the evidence against the risk that the jury will ignore the limiting instruction and make the prohibited character inference (unfair prejudice)
- 104(b) - determine whether there is a prima facie evidence of the accused’s involvement in the other act
Determining “Materiality” 401
- Evidence relevant to identity, intent, & knowledge, which name essential elements of crimes. NOT other listed purposes” ex. motive, opportunity, and plan are rarely essential elements - so if other-acts evidence is offered for one of these purposes, the prosecutor must establish a relationship between that “purpose” and an essential element of the charged offense
- Typically other-acts admitted as proof of 1 of the 3 essential elements: (1) to show that the accused was the actor (identity issue); (2) to show that the accused possessed the requisite mental state (men’s rea issue); or (3) to show that a crime has been committed (actus reus or corpus delicti issue)
Proof of Identity
- always an essential element so always CONSEQUENTIAL/MATERIAL
- other purposes (motive, opportunity, preparation) may be relevant to prove
- Can show in numerous ways like (1) evidence of d’s affair with victim’s wife (other act) may be admissible (MOTIVE) probative of IDENTITY (2) in murder case when victim killed by bomb, evidence that d had used a bomb in prior offense may be admissible to establish technical know-how with explosives (OPPORTUNITY) probative of identiy (3) in bank robbery, evidence that d previously stolen a car that was later identified as the getaway car may be admissible (PREPARATION)
Proof of Identity - Modus Operandi
MODUS OPERANDI evidence - similarity between other act and the crime charged so STRIKING that the same person probably committed both. (commission of 2 robberies with weapon not sufficient). Method of committing the crimes must leave “behavioral fingerprint” or “signature” (distinctive characteristic) ex. mark of Zorro (“Z”), often accumulation of multiple features
Proof of Identity
- Joinder and Severance of Offenses
- 403
- Sometimes admiss of OA raised in cases considering whether to grant motion for severance of offenses
- If evidence of crimes in the other counts of an indictment is admissible under Rule 404(b) argument for severance of offenses under Crim Rule 14 is undercut because the evidence would be admissible even if the motion is granted
- 403 - identifying the material issue (ex identity) is only the first step in determining admissibility. Evidence is still subject to exclusion under 403
Proof of Mens Rea - elements
intent and knowledge - listed in 404(b) as “purposes” - other-acts evidence may be relevant to prove these mental states
Proof of Mens Rea - Lack of Mistake or Accident
- “defenses” of mistake and accident also relate to men’s rea
- Neither is an affirmative defense - both involve a claim that tth edefednat lacked the requisite mens rea for the charged crime
- Ex. D charged with murde4r who testifies that a gun discharged “accidentally” because he was unfamiliar with firearms is raising a defense of accident, which tends to negate the mens rea element of a purposeful killing
- TO REBUT - ex. evidence that the defendant had used a gun during a prior robbery (the other act) may be admissible.- Evidence of absence of mistake or accident typically admitted in rebuttal rather than in the prosecution’s case-in-cheif because the issue is often raised for the first time during the defense’s case-in-chief
- 403 - identifying the material issue (ex mens rea) is only the first step in determining admissibility. Evidence is still subject to exclusion under 403
Proof of Corpus Delicti
ex. Sith accused of murdering his wife found drowned in a bath tub, prosecution introduced evidence showing that his tow other wives also drowned while taking baths - these are relevant to show that the death in the charged offense was homicidal and not accidental
- Could be examples of “absence of accident” (admissible to rebut defendant’s claim of lack of mens rea) - so typically should be admitted in rebuttal
- 403 - identifying the material issue (ex Corpus Delicti) is only the first step in determining admissibility. Evidence is still subject to exclusion under 403
Interrelated Acts (Res Gestae)
- In some cases it’s impossible to exclude evidence of other acts that are interwoven (inextricably interrelated) with the charged crime, even though such acts are not material to an essential element of that crime
- If two crimes are committed together, prosecutor typically joins both in same trial and this issue disappears HOWEVER, sometimes joinder is not possible ex. fed bank robbery prosecution in which the perp steala car (state crime) to make their getaway, and the fed pros wants to use evidence regarding the stolen vehicle to connect them to the robbery. No fed juris over state crimes (this situation is described as evidence of “res gestae.”
Other Purposes
- Other purposes may serve as a prereq to admissibility
- ex. 404(b) evidence may be admitted to refute a duress defense.
- Similarly, evidence of prior acts of domestic violence may be admitted to explain why an alleged victim recanted her pretrial accusations against the defendant.- Contranting - evidence offered to prove a common scheme or plan often involve the propensity inference in disguise
Determining Admissibility under 403
- under 403, rlevant evidence may be secluded if its probative value is SUBSTANTIALLY outweighed by the dnagers of unfair prejudice, confusion of issues, or misleading the jury. Other-acts presents all three of these dangers, especially the risk of unfair prejudice because the jury may use th evidence for the impermissible purpose of inferring character
Determining Admissibility under 403 A. Disputed Issues B. Stipulations C. Alternate Proof D. Jury Instruction
A. Even if OA is probative of an essential element, evidence should be admissible unless that tleement is a disputed issue in the particular case. This is especially important when the other-acts evidence si offered on “mens rea”
B. Frequently, a stipulation will eliminate a dispute nad thus should preclude the need for other-acts evidence. The stiplations must be COMPREHENSIVE and UNRESERVED, completely eliminating the gov’s need to prove point
C. Alternatve Proof - OA in record that is far ore probative than the proffered 404(b) evidence
D. Informing jury that OA evidence may not be used to infer characters not greatly effective. - Instruction may be more harmful than helpful
Accused’s Participation in Other Act (104(b))
Standards
- for OA to be relevant, pros must offer some evidence tending to show that the D committed the other act
- preponderance of evidence, substantial proof, or clear and convincing evidence ex. pg 172 Huddleson rejected all approaches and adopted prima facie (very lax)
