Evidence Question: Prior Bad Acts

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HiiPower2015
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Evidence Question: Prior Bad Acts

Postby HiiPower2015 » Sun Sep 29, 2013 6:00 pm

I have a quick evidence question regarding prior bad acts, whether used to rebut a good pertinent character trait under 404(a)(2) or to impeach a witness under 608(b). I am getting confused on the Huddleston standard vs. "good faith" requirement that the prior bad act occurred.

I understand Huddleston to be that the evidentiary standard for bringing in conditional relevance evidence, like a prior bad act, is that a reasonable jury must be able to find by a preponderance of the evidence that it happened. We also learned in the Michelson case, and I believe a few others, that lawyers must simply have a "good faith basis" when asking about prior bad acts. So do both of these have to be met in order for a prosecutor to ask a defendant a question about a prior bad act in an attempt to rebut his good character trait or impeach him?

For instance, if the State is attempting to bring in a prior charge of assault for a trial for assault. The defendant has either brought in evidence of his character trait of peacefulness or has chosen to testify and is being impeached on cross. Is the proper analysis that before a judge allows the question, a reasonable jury must be able to find by a preponderance of the evidence that the defendant committed the assault, and the prosecutor must have a good faith basis for believing the defendant committed the act?

I believe I just don't understand the Huddleston standard/conditional relevance fully.

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SilvermanBarPrep
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Re: Evidence Question: Prior Bad Acts

Postby SilvermanBarPrep » Tue Oct 01, 2013 12:12 am

The rule you're writing about here (404b) is often called the "MIMIC rule. The court doesn't have to make a preliminary finding by a preponderance of the evidence. Rather, MIMIC evidence is admissible if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. In addition (and this runs throughout Evidence law), the probative value of admitting the evidence must not be substantially outweighed by the danger of unfair prejudice. If that last rule is violated, the judge may exclude the evidence (even though it is relevant).

In regards to impeachment under rule 608(b), the only requirement to bring in prior bad acts is that those acts are probative of truthfulness. So, for example, you can ask a witness, for the purposes of impeachment, whether it's true that he was fired from his last job because he was accused of stealing money from his employer (theft is probative of truthfulness) but you cannot ask (under this specific rule), whether the witness was fired from his last job for sexually harassing another employee (not probative of truthfulness).

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SilvermanBarPrep
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Re: Evidence Question: Prior Bad Acts

Postby SilvermanBarPrep » Tue Oct 01, 2013 12:16 am

I think I misread--you were asking about rule 404(a)(2).

Generally the same considerations as I've stated above don't apply here. For the most part, evidence of the victim offered by the accused will be allowable provided the evidence is relevant. States do vary, however, as to whether opinion evidence will be admissible, or, rather, whether such evidence will be limited to reputation evidence only.




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