Evidence Outline - Professor Tilly - Campbell Law - Part 14

If Criminal case → prosecutor must give notice

M.O. is “signature” going towards identity

• Requires a showing that the crime or its perpetrator and the other crime share distinctive characteristics that evinces a signature quality
  • Still only applies when identity is in issue

Intent is often a big one that gets these cases in

• Often overlaps with knowledge or lack of mistake
  • I.E. – “oh i didn’t mean to push my wife down the staircase”, but your previous wife also died from getting pushed down the staircase → it’s coming in

Motive is big too → often probative of accused’s guilt, obviously doesn’t have to be an element

• I.E. – U.S. v. Moon: D charged with firearm possession Court admitted evidence of his previous drug dealing to prove his motive to possess the gun found in his room

LaCompte Rd. 1 , D on trial for molestation, pros. failed to get evidence under 414 so tries under this rule (notice req. Is just “reasonable time” for this rule, 414 is 15 days). Previous victim testified that D molested her and had played “hide and seek” to do it, P offers as “common plan”

• Court: no, evidence only goes towards deviant sexual behavior, not relevant towards plan/purpose/M.O
  • Not plan b/c was way beforehand and not relevant towards this case
• Identity was not at issue, undisputed that D was only adult present at the time

LaCompte Rd. 2 , prosecutor gives notice in better time frame to get in through 414 → appellate court reverses 403 exclusion

• Shows courts should rarely exclude such evidence based on congress’ intent to lock these fuckers up

Huddleston v. US, standard of whether acts actually happened: judge only has to find that the jury could reasonably conclude by a preponderance of the evidence that the defendant committed or is responsible for the other crime, wrong, or act

• I.E. – if D was convicted of previous crime → pretty conclusive
• But even if acquitted → does not bar its admission
  • Innocent until proven guilty?

US v. Mound, the statute is constitutional

• For probative value: look to how specific the acts are, similarities, timing, reliability, etc.

1. Is the evidence offered for a proper non-character purpose?
2. Is the evidence relevant when offered for that purpose?
3. Has the proponent offered evidence sufficient to support a finding by a rational juror that defendant committed the 404(b) act?
4. Does the danger of unfair prejudice substantially outweigh the probative value of the evidence when offered for that purpose?
5. Can the jury understand and apply an instruction to limit their use of the evidence to that purpose?

FRE 406. Habit; Routine Practices. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

• “Habit” definition: “specific, repeated responses to a particular situation or stimulus.”
  • Much more specific than character evidence
  • Standard is “always” or “almost always”,
  • Situation/stimulus must be SPECIFIC
    • I.E. – i eat during evenings → not specific
      • I have Taco Tuesday at 7 every week → habit
• Allowed regardless of corroboration
  • Able to prove in any way - specific instances, reputation, or opinion
• Typically, morally neutral → lesser chance it’s unfairly prejudicial as compared to propensity evidence
  • Higher probative value typically admitted.
  • Admissible to prove conforming conduct
• Unique admissibility reasons
• Habit examples
  • Driver’s habit of wearing a seat belt
  • Mechanic’s habit of drinking on the job
  • Dude’s habit of invariably acting with extreme violence to an contact with police officers
• Routine practice examples
  • Insurance company’s agents routinely waived written policy conditions
  • Military base’s practice of using base facilities to make authorized retirement gifts
  • BUT NOT - general business customs or industry standards

A few weeks after undergoing dental surgery, Katie Meyer learned she had suffered nerve damage in her tongue and gums. She sued the dental clinic, claiming the dentist who performed the surgery failed to warn her that the procedure could result in nerve damage. The dental surgeon, Kent Askins, could not remember the exact conversation he had with Meyer, but he testified that his standard procedure with any patient undergoing surgery was to advise the patient of all risks associated with the surgery entailed.

• This is fine- can even introduce evidence of one’s own habit without corroboration
  • Credibility is for jury to decide

• FRE 615 – Separation of Witnesses
• FRE 611 – Mode & Order of Examining Witnesses
• FRE 607 – Who May Impeach a Witness
• FRE 608 – Impeaching a Witness’s Character for Truthfulness
• FRE 609 – Impeachment by Prior Conviction
• FRE 801(d)(1) – Prior Consistent & Inconsistent Statements
• FRE 613 – Witness’s Prior Statement

Three ways to impeach witness character for truthfulness

1. 608(a) Reputation & Opinion
2. 608(b) Specific Instances of Conduct
3. 609 Criminal Convictions

Recap: 404(a)(3) Character Evidence: Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609