Prior Bad Acts and Habit Evidence

Question 1

What is the general rule about the use of propensity evidence (Rule 404)?

Answer 1

• Character evidence is NOT admissible to show conduct in conformity (propensity) therewith

Question 2

What does Rule 404(b) say about character evidence?

Answer 2

• What looks like character evidence may be admissible when offered for a purpose other than to show conduct in conformity with one’s character, often called “special relevance.”

Question 3

What are some examples of permissible purposes for prior bad act evidence under Rule 404(b)?

Answer 3

• Motive
• Intent
• Absence of mistake
• Identity
• Common scheme or plan
• Knowledge
• Opportunity
• Preparation
• Lack of accident

Question 4

What must a prosecutor do to offer prior bad act evidence under Rule 404(b)?

Answer 4

• The prosecutor must disclose the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.

Question 5

When must the prior bad act take place in order to bring it in under Rule 404(b)?

Answer 5

• Prior bad acts, other than to show propensity, may have occurred before, during, or after the date of the offense

Question 6

What is an example of a prior bad act being introduced to show motive?

Answer 6

• A defendant is charged with murder. To show that the defendant was the killer, the prosecution seeks to introduce evidence that the victim was the only eyewitness against the defendant in a pending burglary case.

Question 7

What is an example of a prior bad act being introduced to show intent?

Answer 7

• The defendant is found with a quantity of drugs. The defendant claims the drugs were for personal use. In the past, the defendant has had the same quantity and has sold the drugs. The prosecution can offer the past drug sales to show that, when the defendant has this quantity, the defendant’s intent is to sell.

Question 8

What is an example of a prior bad act being introduced to show absence of mistake?

Answer 8

• Defendant steals Neighbor’s car claiming he mistakenly thought it was okay with Neighbor. Prosecution can offer that Defendant previously stole Neighbor’s car and was prosecuted to show Defendant was NOT mistaken in his belief.

Question 9

What is an example of a prior bad act being introduced to show identity?

Answer 9

• An unknown person killed six (6) young plus-sized women and removed their skin, dumping their remains in the river days later after placing a cocoon in their mouths. Buffalo Bill was caught red-handed in the killing of victim seven in this same manner. Evidence of Bill’s killing of Victim 7 is admissible in the prosecutions of Bill for the killings of Victims 1 - 6 to prove Bill is the killer of Victims 1 - 6.

Question 10

What is an example of a prior bad act being introduced to show common plan or scheme?

Answer 10

• Defendants patrolled neighborhoods just before Christmas, posing as security guards and inquiring as to whether the homeowners would be home during the holidays. The defendants would then enter the home and take valuables. Before leaving, they would turn on a faucet, flooding the house. These prior acts could be used to show the defendants were responsible for the current crime.

Question 11

What is an example of a prior bad act being introduced to show opportunity?

Answer 11

• Defendant is caught burglarizing 3 Main Street at midnight on July 4th. Two weeks later, it is discovered that 1 Main Street was burglarized in the evening on July 4th and Defendant denies he could have committed that crime as he was on the other side of town on July 4th. The midnight burglary is admissible to show Defendant was in the area on July 4th and had the opportunity to burglarize 1 Main St.

Question 12

Is habit evidence allowed under Rule 406?

Must habit evidence be corroborated?

Answer 12

• Evidence of the habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity with the habit or routine practice. Each is a repeated response by the individual or organization to a particular situation, not evidence of the party’s general disposition or character.

Question 13

What are some examples of admissible habit evidence?

Answer 13

• EXAMPLE: Regularly stopping at a particular railroad crossing offered to prove person stopped at crossing.
• EXAMPLE: The CFO for Kaplan may testify that it was routine practice for Kaplan to match employee contributions to charitable organizations.
• EXAMPLE: Employer’s secretary always places a copy of mailed letters in a file; copy of letter in file offered to prove letter was mailed.

Question 14

What are some terms on the bar exam that should trigger the existence or nonexistence of habit evidence?

Answer 14

• Sufficient triggers: always, automatically, regularly, instinctively, without fail, invariably, habitually.
• Insufficient triggers: usually, often, frequently.

Question 15

What form can admissible habit evidence take?

Answer 15

• Admissible in the form of opinion or specific acts.
• Habit evidence can also be negative or positive: “X never smokes.” “Y always wears a seatbelt.”