The Character- Propensity Rules

Question 1

FRE 404(a)(1) - The Character Propensity Rule

Answer 1

Evidence of a person’s character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Question 2

Does Propensity evidence pass the 401/403 test?

Answer 2

No. As a matter of law, propensity evidence fails the 401/403 test.

Question 3

What is the natural tendency of a juror as it pertains to propensity evidence?

Answer 3

1) Give excessive wight to the propensity and to allow it to bear too strongly on the present charge; or
2) Take the proof of propensity as justifying a condemnation irrespective of guilt.

Question 4

FRE 404(b)(2): Evidence of Crimes, Wrongs, or Other Acts

Answer 4

Evidence of a crime, wrong, or other acts are not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(a) Evidence of crime, wrong, or other act means any act not directly at issue in the case.
(b) The other need not been a crime, an arrest, or even a “wrong.”
(c) The other need not happen prior to the crime in question.

Question 5

FRE 404(b)(2): Crimes, Wrongs, or Other Acts may be admitted to prove:

Answer 5

1) Motive,
2) Opportunity;
3) Intent;
4) Intent;
5) Preparation;
6) Plan;
7) Knowledge;
8) Identity;
9) Absence of Mistake;
10) Lack of Accident.

Question 6

What are the analytical steps to 404(b) Crimes, Wrongs, and Other Acts?

Answer 6

1) Based on the facts of the case, does the evidence have probative value that does not depend directly on an action taken by the defendant in accordance with her character?
(a) If no - It is inadmissible.
(b) If yes - go to step 2.
2) Is the probative value to show - motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident?
(a) If yes - it may be admissible if the 401/403 test is fulfilled.

Question 7

FRE 105- Limiting Instruction

Answer 7

Limiting Instructions limit the scope of evidence to its proper scope. The court must give a limiting instruction upon request.

Question 8

FRE 404(b)(2)- Knowledge

Answer 8

Crimes, Wrongs, or Other Acts may be offered to prove that the defendant had the necessary or specialized knowledge to carry out an earlier crime. Unless the knowledge put the defendant into a small pool of possible culprits, it will not be enough to be outweighed by the risk of unfair prejudice under 403.
(a) Generalized knowledge is usually an insufficient basis for admissibility.

Question 9

FRE 404(b)(2) - Identity

Answer 9

Evidence may be offered that the defendant committed similar crimes using the same or a distinctive Modus Operandi (MO) as that used by the perpetrator of the charged crime.

Question 10

FRE 404(b)(2) - How is Identity determined?

Answer 10

An examination of the factual similarity between the two acts. The moving party must show that the two acts exhibit a commonality of distinguishing features sufficient to earmark them as the handiwork of that same individual.

A totality of the comparison, not a facsimile or exact replica but the conjunction of several identifying characteristics or the presence of some highly distinctive quality.
(a) The approved logic is basically that this could not be anyone elses crime because they are too similar.

Question 11

FRE 404(b)(2): Opportunity

Answer 11

Evidence of crimes, wrongs or other acts may be used to prove the defendant had access to the scene of the crime or the capacity to commit the charged crime.

Question 12

What is the Good-Faith Rule as it applies to Rule 404?

Answer 12

A lawyer must have information that reasonably leads him to believe the act, did in fact, occur.

Question 13

FRE 402(b)(2): Preparation/ Plan

Answer 13

To demonstrate preparation for a crime or show a common plan or scheme, the charged offense and the offered offenses generally must both constitute a step toward the final goal.

Question 14

FRE 404(b)(2): Intent

Answer 14

Intent may be an avenue for admission of a crime, wrong, or other act if no dispute exists about the acts of the accused but only that he or she lacked criminal intent.

Question 15

FRE 404(b(2): Motive

Answer 15

If some act by the defendant tends to show that he had a motive or committing the crime in question, the court may admit the evidence subject to a 401/403 analysis.

Question 16

What is the Huddleston Standard?

Answer 16

FRE 404(b) “other acts” are subject to the FRE 104(b) conditional relevance standard. That is, a court must examine all the evidence and decide if it is sufficient so a jury could reasonably find the 404(b) by a preponderance of the evidence.

The trial court may allow the evidence in on the condition that it be proved by a preponderance of the evidence by the end of the trial or they will instruct the jury to disregard the evidence entirely.