Evidence Notes File 5-A

LAW 6330 (4 credits)
Professor Pedro A. Malavet

5.0 Relevance Revisited

    Any evidence question can be analyzed as follows:
  • ---> Preliminarily: Who Decides?
    • Judge (FRE 104(a)) or Jury (FRE 104(b))
  • I. Is the evidence relevant? 
    • [FRE 401] [FRE 402]
  • II. Are there More specific questions regarding admissibility?
    • Such as Hearsay, Impeachment, Expert Testimony.
  • III. FRE 403
    • (a) What is the relevant evidence's probative value? [FRE 403]
    • (b) Is the probative value substantially outweighed by the danger of unfair prejudice (or any of the other five reasons)? [FRE 403]
    • To the extent that you are incorporating previous outlines into Part II, remember not to repeat the 104, 401, 402 and 403 analysis.
    • Note that Part II can conceivably present infinite possibilities, and that, when cross-referenced (e.g., is it legitimate expert testimony or hearsay), the complexity increases exponentially. But you have to start somewhere.
    • Finally, specific rules may change or pre-decide the 403 question. A good example is FRE 609(a) which gives you examples of
    • (1) expressly adopting 403 (FRE 609(a)(1)[A]);
    • (2) expressly changing the 403 analysis (FRE 609(a)(1)[B]);
    • (3) and expressly pre-deciding it (FRE 609(a)(2) (so-called "automatic admissibility").
    • (The general view is that 609(a)(2) precludes all FRE 403 discretionary rationales for exclusion by the court, as I stated when we covered this before. However, I suppose that an argument might be made that 609(a)(2) only pre-decides the "unfair prejudice" rationale of FRE 403, or perhaps even all three of the "fairness" rationales, but not the three "efficiency" rationales. But, given the context, impeaching a witness who has actually already testified, I am inclined to go with no remaining FRE 403 discretion, although I suspect that if the party wishes to offer too much evidence, the court would be allowed to step in to shorten the impeachment, but that seems unlikely to be necessary.)

Casebook Material

  • [CB] But "character" also carries a narrower meaning, describing specific inclinations of a person and suggesting their innateness in him. We speak of someone as being "by nature" cautious or careless, brave or fearful, combative or affable, and so forth, meaning that these traits shape his natural tendencies.
  • [CB] Character as evidence of conduct. It is in the narrower sense that "character" has its great evidential significance, for specific inclinations are not only descriptive but predictive, suggesting probable patterns of behavior and thus telling us something about the likelihood that a person would or would not do certain acts.
  • Form:
  • [CB] Form of the evidence. If character (or a trait of character) is to be proved, how should it be done? There are three ways, all involving testimony by what we may call "character witnesses."[1] Such a witness might describe acts by the person that indicate the existence of the trait-that he falsified a document, for example, or rendered a correct account of moneys entrusted to him. [2] Or she [the witness] might give her opinion that the person has the trait in question-she thinks him "honest" or "deceitful." [3] Or she [the witness] might describe his reputation -"the shadow his daily life has cast in his neighborhood," as the Supreme Court called it in Michelson v. United States, 335 U.S. 469, 477 (1948). In our example, she might testify that he is by reputation "honest" or "deceitful." [FRE 404] [FRE 405]
  • [CB] As a glance at FRE 405(a) reveals, the Federal Rules authorize both reputation and opinion evidence, but sharply restrict evidence of specific instances.
  • Florida Evidence Code:
  • The Florida rules are much more restrictive of the use of character evidence than the Federal rules.
  • I like the characterization of the Federal scheme for character evidence by the Supreme Court quoted at page in the casebook:
  • [M]uch of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.
  • Michelson v. United States, 335 U.S. 469, 486 (1948).
  • Malavet:
      Note 5 refers to the a character witness who testifies that he "had heard nothing ill" of defendant. Note that this is like the evidence of non-complaint in hearsay, it is not really a statement there, and here it is not a specific instance of conduct about which you may NOT inquire.

5.1 Character of Defendant & Victim

  • Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
  • (a) Character evidence generally. [i] Evidence of a person's character or a trait of character is not admissible [ii] for the purpose of proving action in conformity therewith on a particular occasion, except:
  • (1) Character of accused. [A] In a criminal case, evidence of a pertinent trait of character offered by an accused, or [B] by the prosecution to rebut the same, or [C] if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2)[A], evidence of the same trait of character of the accused offered by the prosecution;
  • (2) Character of alleged victim. [A] In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or [B] by the prosecution to rebut the same, or [C] evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut [any] evidence that the alleged victim was the first aggressor;
  • (3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.
  • Malavet
    • Note that I changed my idiosyncratic numbering of the first paragraph of 404(a) from (a)[1] and (a)[2] to (a)[i] and (a)[ii] in order to avoid confusion with the three exceptions paragraphs.
  • Rule 405. Methods of Proving Character 
    (a) Reputation or opinion. [1] In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by [1-A] testimony as to reputation or [1-B] by testimony in the form of an opinion. [2] On cross-examination, inquiry is allowable into relevant specific instances of conduct.
    • [NOTE THAT anything other than these three types of evidence of character would be considered "extrinsic" and not admissible.]
  • (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Problem 5-A: Fight at the Red Dog Saloon (Part 1):
Authors' Answers, with my comments.

  • First, on the state's proffer of Coach Jones's testimony: The defense is wrong to argue that what Coach Jones has to say is "irrelevant," but right that it is "barred by the character rule." The first sentence in FRE 404(a) bars testimony by Coach Jones, for none of the three listed exceptions applies.
  • Essentially the Rule keeps prosecutors from offering such evidence during their case-in-chief for three reasons: First, juries may misuse it, convicting defendant because he is a bad person (a classic form of prejudice under FRE 403). Second, juries may overvalue such evidence, giving it more significance than it deserves. Third, it is unfair to require the accused (charged with a particular crime) to defend his whole life, his whole being.
  • Second, on the defense proffer of Reverend Gram's testimony: The prosecutor is wrong on both counts in objecting to testimony by Reverend Gram, which is relevant and admissible under FRE 404(a)(1)[A]. Here the argument stressing relevancy combines with solicitude for the defendant to pave the way for the evidence.
  • Rebuttal:After Gram testifies, the prosecutor in his case-in-rebuttal can call Coach Jones and adduce the testimony originally excluded. The [NEXT-TO] last phrase in FRE 404(a)(1)[B] contemplates such rebuttal. So the cost to the accused of pursuing this course is to open a door otherwise kept closed for his benefit.


The notes are very important, please read them ALL with great care.

  • To supplement Note 4, the authors add:
  • The Supreme Court's decision in Edgington says "reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt," so cases like Hewitt are on good ground (character alone may create reasonable doubt). But sometimes courts approve warnings that the jury should not "acquit merely because of good character," United States v. Callahan, 588 F.2d 1078, 1083-1086 (5th Cir.), cert. denied, 444 U.S. 826 (1979), or that good character does not "excuse" a crime, United States v. Furr, 528 F.2d 578, 579-580 (5th Cir. 1976). Michelson is clear on the point that there is no "presumption of good character."

Problem 5-B: Red Dog Saloon (Part 2):
Authors' Answers, with my comments.

  • The prosecutor is wrong on both grounds.
  • [Admissible, OVERRULED:]
    • Proof of a belligerent, aggressive disposition is relevant as some evidence that Vince started the fight, and the testimony is not barred by the "rule against character evidence," for FRE 404(a)(2)[A] permits defendant to offer evidence of a "pertinent trait of character of the victim of the crime."
  • [Form:]
    • Under FRE 405(a), Ernie should be able to give his "opinion" that Vince is by disposition belligerent, or to describe Vince's "reputation" on this point.
  • Malavet
    • Then we get to the question, what can the prosecutor do in rebuttal?
    • I have moved this discussion, which I had posted yesterday, to the notes for Problem 5-C.


  • 3. Threats: Malavet:
    • Threats are not character evidence, but they do raise hearsay concerns. FRE 803(3) should allow their admission.


  • Malavet
    • Evidence of peaceful or violent character is not an element of the offenses of assault and battery. This evidence creates an inference of conduct, but is not directly an element of the offense or defense.
    • The scope of 405(b) is difficult to grasp because it so rarely applies. It is difficult to conceive of ANY criminal charge or defense to which 405(b) should be applied. The ACN offer "reputation for chastity" as an element of the crime of seduction (a prosecution for which probably has not occurred for years). On the civil side things are a bit easier. For example, bad character of the plaintiff could be used as a defense in a defamation case (i.e., the plaintiff HAS not reputation to besmirch).
    • In any case, you must read 405(b) very narrowly. Few courts will ever be faced with applying 405(b). It is however much more likely that 404(b) might come into play. Under 405(b) the person's reputation for a pertinent character trait must itself be an element of the offense. But, you will be happier narrowly reading 405(b) and generally assuming that it does NOT apply to anything. Since it applies to so very little, that is not a very dangerous assumption, whereas trying to use it aggressively would be very dangerous indeed.

5.2 Proving Character

In my discussions with students, in and out of class, during prior semesters, it has become very obvious that those students who have taken Trial Practice or who have worked on Trial Team competitions or otherwise had an opportunity to observe a real trial, have an advantage over other students in understanding the context in which the Rules are applied. They also have an advantage in being able to visualize how testimony is actually received, such as how you can go from technical cross-examination, to technical direct with leading questions, with the same witness, during your opponent's case-in-chief, without actually interrupting your examination of the witness (which is perfectly permissible and perfectly common under FRE 611(b)[2] and FRE 611(c)).

I can only repeat this so much, but you have to work at understanding this functional concept of examination. If you do not understand this, you have a serious problem in understanding these rules, and I strongly suggest that you drop by during office hours to discuss it, because, given the varying degrees of knowledge and experience among students, I cannot spend inordinate amounts of time repeatedly going over this in class.

You simply cannot expect clinical laboratory conditions for the application of the rules. It is not a realistic way of studying the Rules of Evidence.

Problem 5-C: Red Dog Saloon (Part 3):
Authors' Answers, with my comments.

  • [Opinion Testimony]
    • As offered, the opinion testimony by Reverend Gram, Coach Jones, and Ernie all squarely fit FRE 405(a), where the basic message is that if character evidence is admissible at all, it may take the form of "opinion" or "reputation" testimony.
  • [Foundation]
    • But the proponent must lay a foundation first, by showing the witnesses are personally acquainted with the person whose character they are prepared to assess. Parker (note 1) seems right to approve personal knowledge acquired among coworkers, and Michelson envisions reputation evidence drawn from the neighborhood where defendant resides (today the logic of Michelson supports opinion testimony by neighbors).
  • [Reputation] [FRE 405]
    • Jones, Gram and Ernie could also give reputation testimony, which would require them to testify that they talked with people in the community about Vince or Don. Here the foundation should indicate acquaintance with reputation in a pertinent period of time -- for testimony about either Don or Vince, that should mean acquaintance with their reputations before the fight became widely reported and the charges were brought against Don.
  • Malavet
    • Note that Reputation likewise requires a foundation, but, as we discussed in class, it is different in content than that for opinion.
  • [Specific Instances]
    • FRE 405 does not authorize proof of specific instances. The reason is that "character" has not become "an element" in either the charge or the defense. Theoretically the accused cannot be acquitted for being a good person, nor convicted for being a bad person. His good qualities supply a basis to infer that he is innocent of the charged behavior, his bad qualities a basis to infer at least that evidence of good qualities is false, and perhaps even to infer that he committed the misdeeds charged to him.
  • Malavet
    • ASSUME that Don did NOT present the testimony of Reverend Gram offered in Problem 5-A.
    • A previous student pointed out that 404(a)(2)[B] generally allows any prosecutorial rebuttal of character attacks on the victim, with character evidence about the victim. The difference between that and 404(a)(2)[C] is that the latter applies only in homicide cases, and allows rebuttal of ANY suggestion that the victim was the aggressor, made through character evidence or otherwise. So, if defendant presents an eyewitness that says that victim Vince struck first, and Vince is dead and Defendant Don is charged with murder, then the prosecution may bring in evidence of Vince's peaceful character. If the facts are as stated in Problem 5-B, and Vince is alive and Don is only charged with battery, then 404(a)(2)[B] applies and the door to rebuttal could only be opened by character attacks by Don on Vince.
    • So, given the facts of the problem, under FRE 404(a)(2)[B], the prosecutor could bring in witnesses during their case-in-rebuttal, to testify to alleged Victim Vince's non-violent character, through opinion and reputation testimony. In class, I identified this witness as SALLY.
    • BUT, the prosecution may also NOW present the testimony of Coach Jones regarding Don's violent nature, EVEN IF DON HAD NOT OFFERED GRAM's testimony regarding Don's peaceful nature. This time under FRE 404(a)(1)[C]. In other words, the attack on the character of the victim opens TWO doors for the prosecution: (1) rehabilitating alleged Victim Vince's reputation and (2) attacking Defendant Don's reputation. If Don had offered Gram's testimony, the the prosecution could counter with Coach Jones under FRE 404(a)(1)[B].
    • Cross-examining Ernie. Ms. Hall asked an excellent question regarding cross-examination of Ernie. Ernie can certainly be cross-examined about specific acts regarding the character OF VINCE under FRE 404(a)(2)[B] and 405(a)[2].
    • Furthermore, using FRE 404(a)(1)[C] AND FRE 611(b)[2], the prosecution might inquire of Ernie as to DON's reputation for peacefulness (or lack thereof). Under 405(a)[1], that cross-examination (or, technically, direct questioning of a witness allowed by the court to occur sooner rather than later, under 611(b)[2]) would be (1) subject to a foundation (does Ernie know Don or just Vince?) and (2) like Coach Jones, at least initially limited to opinion and reputation.
    • One way to justify the use of leading questions in asking Ernie about Don would be to test for bias, which is perfectly legitimate impeachment cross-examination. So, in testing Ernie for bias (e.g., "isn't it true that you are trashing Don because you are Don's friend"), you might lay the foundation for asking opinions about Don's peaceful character.
    • However, unlike coach Jones being called during the prosecution's case-in-rebuttal, once Ernie answers one way or another (although probably if he says Don is a peaceful guy --why would the prosecutor test his opinion if he says Don is a violent person?), 405(a)[2] kicks in to allow specific instances questioning relative to DON, provided that Ernie is considered to be either associated with Don [FRE 611(c)[3-C]] or hostile to the prosecution [FRE 611(c)[3-A]]. Note that the designation of association or hostility would not be automatic for Ernie because he might really just know Vince but not Don. Ernie could avoid testifying about Don altogether simply by testifying that he knows Vince, but not Don, well-enough to testify as to their character (which is in fact a very probable scenario). Wow that was fun!
    • The scope of re-direct is a bit of an official mystery in the literature, because of there are few published opinions, but, given my experience, on re-direct Don's counsel would be entitled to ask about specific bad acts regarding Vince, IF the prosecution asked about specific good acts regarding Vince. If the prosecution asks about specific acts regarding Don, either you have re-direct rules apply (if Ernie was ruled to be associated with Don under 611(c)) or legitimate cross-examination on specific acts under 405(a)[2].
    • Malavet
      • When I last reviewed the caselaw, the few reported decisions actually appeared to LIMIT the scope of re-direct to questions about how or if the opinion/reputation changed on the basis of the other acts.
      • Therefore, it appears that the courts in fact do NOT allow REHABILITATIVE questions regarding specific acts.  I will keep looking at the caselaw, but this is the latest I have.
    • On how these excursions can escalate, remember the "Ping-Pong" discussion at page 586 of the casebook.


  • Malavet
    • Note 2(a) again raises the "element" issue under FRE 405(b). As I explained above, 405(b) is a barnacle on the side of the FRE Ship and you should be prepared wholly to ignore it. 404(b) is the one that merits your attention.
  • [CB] (b) Suppose Don makes the somewhat different claim that his behavior was reasonable because he knew that Vince had committed violent acts in similar situations, hence that special self-protective measures were necessary. Now can Don offer proof relating to prior acts by Vince? See United States v. Burks, 470 F.2d 432, 434-435 (D.C. Cir. 1972) (violent acts by the victim were admissible, when known by the defendant, on the question whether the defendant "reasonably feared he was in danger of imminent great bodily injury"). Do FRE 404 and 405 apply here? [This falls under FRE 404(b)[2][A]].

Problem 5-D: What Price Truth?

  • [Domestic Violence:
    [Objection Overruled: [FRE 404(a)(1)[B]] [FRE 405(a)[2]]
    • The real cost to the accused, when he offers testimonials on good character, is that his witness is cross-examinable on any pertinent instance of conduct by the defendant that casts doubt on the testimonial. Clearly Irwin's question to Gram about Don's beating his wife was proper. However special and peculiar wife beating might be, it amounts to violence and is inconsistent with a disposition toward peaceability.
  • [Embezzlement/Tax Evasion:
    [Objection Sustained [FRE 404(a)(1)[B]]
    • Questions to Gram about Don being fired for embezzlement or convicted of tax evasion are improper. The prosecutor can argue that they test how well Gram knows Don, but they are so damaging that courts usually restrict them to the subject area of the direct.
  • Malavet
    • What if Don were a witness? [FRE 404(a)(3)]. Then the questions might be allowed, but only if Gram had testified to Don's truthful character, which would only have been allowed if Don testified, and if the prosecution had attacked him under FRE 608.
    • If Don testifies then HE could be asked about the CONVICTIONS for such acts pursuant to FRE 609(a) [Go to Notes].
    • CROSS-REFERENCE to pages 600-612 (Impeachment of testifying witness through character witnesses [Go to Notes]) and 677-685 [Go to Notes].
  • [Brawling: Objection Overruled [FRE 404(a)(1)[B]] [FRE 405(a)[2]]
    • The question about being arrested for brawling after a football game is proper under Michelson (questioner may ask about arrests) [FRE 404(a)(1)[B]] and FRE 405. Probably it is important that the arrest was for violent acts, since the witness is being tested on his knowledge about defendant's peaceability.


  • [Note 1, CB] A defendant . . . is powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of inquiry, unless defendant thought the net advantage from opening it up would be with him. Given this option, we think defendants ... have no valid compliant at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense.
    • Michelson v. United States, 335 U.S. 469, 484-485 (1948).
    • instructions which advise the jury to consider the questions only as they may reflect upon the knowledge or judgment of the character witness.  See United States v. Birney, 686 F.2d 102, 108 (2d Cir. 1982) (cross-examination affects solely weight to be given to testimony by character witness).
  • Malavet
    • Note 2. Note the "helpfulness" of limiting instructions.
    • I want you to consider this instruction, given in Michelson:
    • Michelson instructions: These are the instructions given in the Michaelson case:
      •  "I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness' standard of opinion of the reputation of the defendant is being tested. Is that clear?"
    • In overruling the second objection to the question the Court said:
      • "Again I say to the jury there is no proof that Mr. Michelson was arrested for receiving stolen goods in 1920, there isn't any such proof. All this witness has been asked is whether he had heard of that. There is nothing before you on that issue. Now would you base your decision on the case fairly in spite of the fact that that question has been asked? You would? All right."
    • The charge included the following:
      • "In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn't any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold against him; nor are you to assume what the consequences of that arrest were. You just drive it from your mind so far as he is concerned, and take it into consideration only in weighing the evidence of the character witnesses."
  • The Authors:
    • The prosecutor cannot just make up questions to raise the stench of misconduct (note 3). Michelson requires the cross-examiner to "demonstrate privately to the court an irrelevant and possibly unprovable fact" so that "the legally irrelevant conclusion which the jury probably will draw from the relevant questions will not be based on unsupported or untrue innuendo" (thus illustrating that "the system may work best when explained least"). See also United States v. Alvarez, 860 F.2d 801, 826 (7th Cir. 1988) (prosecutor must have "good faith factual basis" for inquiries to defense character witnesses on "past acts of misconduct").

Civil Cases

  • [CB] It follows that character evidence, when offered to prove behavior in a particular instance, is never admissible in civil cases. Despite this fact, however, courts sometimes admit character evidence in civil cases where the underlying conduct is criminal in nature. ***
  • Malavet
    • HOWEVER, the rule was amended in 2006 expressly to overrule such misinterpretations of the rule.
  • [CB] New FRE 415 carves out an exception to the ban on character evidence in civil cases where the claimant seeks damages for sexual assault or child molestation.

5.2.b Character as Element

  • [CB] Now look at something new. Rule 404 does not bar evidence of character when it is offered for other reasons than to prove conduct on a particular occasion. And note that Rule 405(b) provides that "proof" of "specific instances" of conduct is admissible whenever character is an "essential element" of a charge or defense.
  • [CB] So we have a new question: When is character an "element" of a charge or defense?
  • [CB] In criminal cases the answer is "almost never." The Advisory Committee tried to think of an example and could only come up with one that is obscure and archaic-"the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction"! ***
  • [CB] Now check your understanding, bearing in mind that the accused often does try to show his innocence by proving his own good character. It is no exaggeration to say that the jury's opinion of his character may be his most important asset. But it does not follow that his character is "an essential element" of a charge or defense under FRE 405(b). In more common parlance, character itself is not "in issue" regardless how vigorously it may be disputed or how important it may be in the jury's deliberations. Put yet another way, we do not (or should not) convict a person because he is "bad" (unless it also happens that he committed the charged offense) or acquit him because he is "good" (unless it also happens that he did not commit the charged offense).

OLD Problem 5-E: She's a Known Thief:
Authors' Answers with my comments in Blue.

As an example of when Specific Instances of Conduct are an element of the offense or defense under FRE 405(b), this problem is TERRIBLE! However, as an example of real-life character issues that link FRE 404 and 405 on the one hand, to FRE 607, 608 and 609, on the other, it is priceless.

Another important value of this problem is to illustrate the extent of the PROHIBITION against the use of character evidence. In the hearsay area, it is very important to understand the full extent of the hearsay prohibition, before you may understand the exclusion, exemptions and exceptions. The same applies in the character area. One mistake that I have noted is that students try to define the EXCLUSION in terms that are too narrow. In other words, you usually attempt to find a perfect example of ADMISSIBLE character evidence before the prohibition is applied. That is wrong. The prohibition acts to exclude all character-type evidence ESPECIALLY imperfect types of such evidence because those are especially unreliable. On the other hand the exceptions that allow character evidence (or hearsay) to be used are narrowly and technically defined.

  • [CB] During his case-in-chief, the prosecutor offered [1: Specific Instances of Conduct/Prior Bad Acts] Helen's testimony that "I watched Gretta closely that day because I had learned by watching videotapes that Gretta stole other clothing items from the department in recent weeks, including a sweater, some gloves, and some lingerie." [2: Reputation as a Thief] Helen would also testify (if allowed) that Gretta had a reputation among the security guards in the store as a shoplifter of small items from many departments, from electronics to homewares to cosmetics and jewelry. [3: Specific Instances of Conduct/Prior Convictions] The prosecutor also offered evidence that Gretta had been convicted of shoplifting (at other stores) four times in the last five years.
  • [Assume first that Gretta will NOT testify. [404(a) Applies]
  • [Three Objections Should be Sustained.]
    • All three items should be excluded. To start with, being a thief is not an element of a charge, claim, or defense under FRE 405(b). Students need to grasp this point thoroughly: What the prosecutor must prove is that Gretta shoplifted on the particular occasion, not that she is by character or disposition a thieving sort of person. If she did shoplift that one time, arguably the label "thief" aptly applies to her, but in ordinary discourse we don't usually pin such a label on someone on account of one misstep. In any event, Gretta should be convicted if she shoplifted regardless whether she is by nature or disposition a shoplifter, so being one is not an element in the case.
  • [FRE 404(a) does apply here: Evidence of the prior thefts should be kept out. FRE 404(b) DOES NOT.]
    • The prior thefts would support an inference of intent (note 2), and students are about to learn (beginning on page 410) that intent is a "biggie" in the galaxy of using prior acts under FRE 404(b). Students are likely to pick up on this point, even though they're not yet that far along. Without spending the whole time teaching in advance what is yet to come, it seems useful to point out that "intent" is not really the issue here: It's not that Gretta says "the clothes in my purse belonged to the store, but I just forgot that I had them and didn't really mean to steal them." Instead she says "those are my clothes," so I'm not stealing anything at all. Under the circumstances, we think a court should reject the argument that prior shoplifting is admissible here as proof of intent, at least because the risk of unfair prejudice is great (jury misuse of the evidence to support the proposition that "she stole before so she's probably a thief and she probably stole this time") and the need for (utility of) such proof is so low under the circumstances (probative value is substantially outweighed by the risk of unfair prejudice).
  • It is true that Gretta's defense (I brought the items "as a change of clothing") would ordinarily be understood to mean in substance "I'm not a thief," but she hasn't actually said that, and her verbal formulation is a reasonable way of making the defense she intends (it's true that I had articles of clothing in my purse, but here's the reason). If she had said "I'm no thief," this form of self-endorsement might be construed as character evidence, although surely it is not the kind of evidence that FRE 404 envisions, which is an expression of substantially that view by somebody else who knows her by personal acquaintance or reputation.
  • Malavet
    • ---> How would the answers change, as to Helen's testimony, if Greta does testify?
      • Helen would likely NOT be allowed to testify as to the reputation of Greta among security guards.
        ---> First, it is probably not something that goes to her character for truthfulness under FRE 608(a).
        ---> I cannot imagine a court finding that to be the relevant "community."
      • FRE 608 allows people to testify about the witness' character for truthfulness. The mall/store security guards would NOT be the relevant community to qualify Helen to testify about that. As Mr. Bauer suggested, the security people or police, under the right circumstances, might qualify to testify about prior acts or reputation regarding being a thief, but not as to truth-telling in general.
      • In any case, it would be excluded under FRE 403.
    • How would the answers as to the bad acts/convictions change if she does testify,
      and states:
      • (a) "I did not steal clothes on this occasion, I was carrying a change of clothes because I had a date"; OR
        (b) "I am not a thief."
        If Greta testifies, Helen would not be allowed to testify as to prior bad acts of shoplifting. That would be impermissible extrinsic evidence under FRE 608(b).
    • Greta's Cross-Examination:
      • Greta might be cross-examined about non-conviction prior acts under FRE 608(b) IF the court finds that shoplifting goes to truth-telling; or she may be confronted with the convictions if they fit under FRE 609(a). Highly unlikely under the facts of this case. [FRE 404(a)(3)] [Cross-Reference to Note 3 at page 628 to see how shoplifting is treated for 608(b) and 609(a) purposes.]
  • [Contradiction]
    • In Chapter 8 on Impeachment, we treat such statements ("I'm not a thief") in the manner in which they are usually treated -- as sweeping claims that assert innocence of the charged crime by inclusion ("I'm not a thief" means "I didn't steal this time"), which is usually said to "open the door" to counterproof showing specific instances that contradict the broader point (other thefts of the sort that Gretta's testimony and the prior conviction would show in this case).


  • Malavet
    • Note 3: The evidence might be admissible to show why Gretta was followed. What the officers' know about a suspect, used to explain their actions would not be a use to prove action in conformity therewith, an thus not precluded by 404(a)[ii]. But, because it would also be used by the jury to make precisely that inference, the unfair prejudice is high. I would think this should not be allowed under FRE 403.
  • [CB] 4. Consider criminal prosecutions in which defendant claims "insanity" or "diminished capacity." Do FRE 404 and 405 apply in this context, or do these defenses involve something apart from "character"? See United St ates v. Emery, 682 F.2d 493, 496-501 (5th Cir.) (admitting prior offense evidence as part of government's proof that defendant was sane), cert. denied, 459 U.S. 1044 (1982).
  • [CB] 5. Consider trials under repeat offender statutes in which a prior conviction is an element in the present charges (as in prosecutions for illegal possession of a firearm by a convicted felon). How about cases in which prior offenses may affect the punishment imposed? Do FRE 404 and 405 apply in these situations? Recall that the Supreme Court held in Old Chief that in this setting a defense offer to stipulate requires the court to exclude proof of prior crimes (see Chapter 2, supra).
  • [CB] [Note the preference for 404(b) over 405(b).] 6. When defendants claim entrapment, they are essentially saying government action induced them to commit crimes they would not otherwise commit. Thus it becomes plausible to say character is an element in the defense. Typically, however, the response of the prosecution is not to introduce opinion or reputation evidence but to offer proof that defendant committed similar crimes on other occasions. Usually courts admit such evidence under FRE 404(b) rather than as an element of the defense under FRE 404(a)(1) or 405(b).

Element In Civil Cases: Now we are talking ELEMENT!

  • [CB] Defamation. The most obvious example is the defamation suit in which truth is raised as a defense: If a basketball player sues the local newspaper on account of a story reporting that he "shaves points for cash, " then defense evidence that in fact plaintiff did exactly that would be admissible. The proof would likely take the form of evidence of point-shaving in particular games. If the alleged libel is more general (accusing plaintiff of being a "thief"), a defense of truth would pave the way for evidence of particular thefts, or even opinion or reputation testimony that plaintiff is indeed a thief. Sometimes reputation as such bears on damages. Defendant in a libel suit might allege that what was said did not damage plaintiff, simply because plaintiff suffered a bad reputation even before the defamatory utterance, in which case evidence of such bad reputation is admissible. See Schafer v. Time, Inc., 142 F.3d 1361, 1370 (11th Cir. 1998) (in libel suit, admitting evidence of specific acts by plaintiff, since his character was substantively at issue under FRE 405(b)).
  • [CB] Negligent entrustment. Another obvious example is the negligent entrustment action, where plaintiff alleges that defendant was negligent in permitting another to operate his equipment (typically a car or truck) and that the other negligently injured plaintiff.
  • [CB] Child custody. Yet another example is the child custody dispute, in which relative parental fitness of mother and father is assessed in order to serve the "best interests" of the child. Here character, in the sense of being a good parent, is the ultimate issue in the case. See Berryhill v. Berryhill,410 So.2d 416,418-419 (Ala.1982) (specific acts and reputation evidence admissible).
  • [CB] Wrongful death. A common instance of such use of character evidence is the wrongful death action in which the amount of recoverable damages may turn on the "worth" of the decedent to the plaintiff.


  • [CB] 1. In libel cases in which the allegedly defamatory statement was general in character, should defendant be permitted to support a claim of truth by reputation or opinion evidence? If the statement charges specific acts of wrongdoing, should defendant be able to support a defense of truth by evidence of other specific acts of a similar nature? See Roper v. Mabry, 551 P.2d 1381 (Wash. App. 1976) (no). Cf. Reynold s v. Pegler, 223 F.2d 429, 435 (2d Cir.) (excluding letters linking plaintiff with other subversive organizations, offered in support of defense of truth of statements associating plaintiff with communism), cert. denied, 350 U.S. 846 (1955).
  • [CB] 2. Could defendant use proof of such different acts to show that plaintiff's reputation was not injured by the allegedly defamatory statements? See Meiners v. Moriarity, 563 F.2d 343, 351 (7th Cir. 1977) (court should have let party charged with libel cross-examine claimant on "relevant specific instances of conduct" that might have produced adverse publicity, including "events other than the . . . incident" mentioned in statement). What if plaintiff has engaged in other misconduct but that misconduct has not become known to the public or the business community? See Shirley v. Freunscht, 735 P.2d 600 (Or. 1987) (in defamation suit, defendant tried to show that plaintiff had bad reputation beforehand; error to let witnesses relate specific instances of "business misconduct," which are irrelevant "unless they were generally known in the business community," which wasn't shown here).

5.2 Prior Acts as Proof of Motive, Intent, Plan, and Related Points [FRE 404(b)]

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. [i] Evidence of a person's character or a trait of character is not admissible [ii] for the purpose of proving action in conformity therewith on a particular occasion, except:


(b) Other crimes, wrongs, or acts. [1] Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. [2-A] It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, [2-B] provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

  • Malavet:
    • In general, note that FRE 404(b) is a NON-Exclusive list of uses deemed to be for purposes other than "in order to show action in conformity therewith," hence the "such as."
    • Additionally, as I explained initially, this is a classic 401, 402 & 403 balancing the relevant probative value against the danger of unfair prejudice. What we have is that FRE 404 articulates a particular regime for how we should approach the unfair prejudice analysis.
    • Unfair Prejudice Dangers:
      • (1) That the jury will use the evidence to believe that defendant is a bad person, and thus deserving of conviction or a finding against them in a civil case. This is always an impermissible use.
      • (2) That the jury will conclude that defendant acted in conformity therewith on a particular occasion. NOT always impermissible.
      • IMPERMISSIBLE: When the jury can only draw a general, bald inference of action in conformity therewith.
      • PERMISSIBLE: As rebuttal evidence, when defendant makes character an issue by supporting his own or attacking that of the victim. FRE 404(a)(1) & (2).
      • PERMISSIBLE: Prior Acts under FRE 404(b) which are offered to prove something very specific (often an element of the offense) from which the jury can then draw a very specific inference that defendant acted in conformity therewith on the charged occasion.
    • NOTE that 404(b) and 405(b) differ in that under 405(b) character itself has to be an element of the offense, but under 404(b) evidence of bad conduct (and thus arguably of bad character) is used prove an element by specific inference of conduct.

Problem 5-E: Drug Sale or Scam:
Authors' Answers, with my comments.

My FAVORITE problem in this textbook!

  • [Relevance vs. Unfair Prejudice]
    • Use of prior bad acts raises questions of relevance versus unfair prejudice, which must be "balanced" in order to make a decision.
    • Do prior dealings tend to show Moore harbored the requisite intent (to sell cocaine to Hardy)? The answer is yes, but only if we draw a propensity inference:
      • His prior dealings show he was inclined to sell cocaine, so this time (when other evidence shows he set up a cocaine transaction) he acted in accord with that inclination, harboring the intent to sell. The difference between this inference and the bald propensity inference forbidden by FRE 404(a) lies in the specificity of the argument. The more specific argument is more persuasive because the proof carries a lighter load -- we have other evidence that Moore set up a cocaine sale (scam or real), and we ask only whether he intended to sell.
  • [Entrapment, Relevance & Probative Value]
    • Do the prior dealings tend to refute entrapment? That defense asserts that government action (behavior by Rhoda Smith) caused or produced the crime, which suggests that Moore was not disposed in that direction. Arguably defense strategy injects disposition into the case because it suggests that defendant's intent and acts did not produce the crime. Since other evidence shows defendant was an actor, the argument that he did not intend a crime suggests that he was simply not the sort to commit such a crime. Thus counterproof that he is inclined that way becomes especially relevant. So evidence of prior cocaine sales is relevant, but once again we go far down the path of drawing a propensity inference: He did bad deeds before, therefore was inclined toward such deeds, therefore was inclined to commit such deed this time (his intentional act caused the crime, not government action).
    • The difference between this propensity inference and the bald inference forbidden by FRE 404(a) is that here we stop the inferential chain at the second link (propensity existed in defendant) -- or, to put it another way, we draw a final inference not from propensity toward bad acts, but from propensity in general to propensity on the given occasion.
  • [Unfair Prejudice]
    • There is a risk of "unfair prejudice" because the proof may (a) inflame or anger the jury, blinding it to the issue of guilt of the specific charge, or (b) induce the jury to draw the general propensity inference, rather than using the proof in the more particular manner outlined above.
  • [Balance: Objection Overruled, Admit.]
    • In deciding whether risk of unfair prejudice "substantially outweighs" probative worth, the judge considers such factors as (a) prosecutor's need for the evidence, (b) degree of probative worth on the particular question, and (c) nature of prior misdeeds. Here the defense claim of innocent involvement and entrapment establish need, the probative worth seems great because of the close resemblance between prior deeds and charged offense, and the nature of the prior misdeeds is not inflammatory.
  • [Actual Case: Objection Overruled, Evidence Admitted]
    • The problem rests loosely on a case that approved testimony by Smith describing Moore's narcotics transactions.
    • Moore concluded that risk of prejudice was minimal because "the only obvious use for the bad acts testimony is the proper use," which is showing intent. The court noted that the defense refused a limiting instruction. (Dissenting here too, Mikva argued that the manner of presentation prejudiced defendant, suggesting that Smith "interjected references" to past transactions in her description of the charged offense and thus confused the issues. He says Smith was charged with many misdeeds and convicted only of conspiracy, which in general involves complications and confusion, so the "minimally probative" testimony should have been excluded as prejudicial.)
    • United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)


  • [CB] 7. The entrapment defense raises the question of intent in its largest sense. The heart of this defense is that government action induced a crime the defendant would not otherwise commit, and the usual response to the prosecutor is to offer proof that defendant committed similar crimes on other occasions. Courts admit such proof typically citing FRE 404(b).

Problem 5-F: He Came Running in all Hunched Over (modus operandi)

  • [Bald Propensity Argument]
  • [General Inference of Conduct vs. Specific Inference of Conduct]
    • We come close to a bald (albeit specific) propensity argument. [Relevance] We have detailed evidence of charged offense that is arguably distinctive, and the prosecutor offers evidence that defendant committed 8 prior robberies containing the same elements. The argument runs thus: The fact that defendant committed 8 distinctive robberies makes it likely that he committed other similarly distinctive robberies, and we know someone committed a similarly distinctive robbery here, so evidence of past behavior by defendant (modus operandi) makes it likely that it was he who committed the charged offense ("identity").
  • [Similarity/Distinctiveness]
    • One might try to avoid the propensity inference by appealing to what McCormick called "the doctrine of chances." If we know defendant does something striking and unusual, and that some unknown person did the same thing, the chance improves that defendant is the one, simply because so few others do such things. The keys to the modus operandi argument are (a) close resemblance (b) distinctive nature of prior and charged misdeeds.
    • On the point of close similarity, these facts seem persuasive, for we have proof not merely that Gore was inclined to rob banks (general propensity), but that he was inclined to rob banks in a particular way (specific propensity). On the point of distinctiveness, the case is less persuasive: Many bank robbers do about what Gore did, and his approach seems more archetypal than distinctive. If we posit a bank robber in a ski mask on Staten Island in the heat of summer (July 30th), then perhaps what Gore did is distinctive (surely most such robbers opt for stockings over the head, costume masks, or even makeup). Running in a hunched posture and vaulting over the counter is probably unusual, but bank robbers are likely to know that crouching shrinks their silhouette in case someone wants to take a shot at them.
  • [The Actual Case: Objection Overruled]
    • The problem rests on United States v. Danzey, 594 F.2d 905 (2d Cir. 1979) (defense objection to confession "borders on the frivolous"; this "classic similar act evidence" was admissible to show "modus operandi" under FRE 404(b), for there was a "close parallel" between charged crime and other acts; defendant Gore admitted that "he had a 'trademark,'" and other robberies occurred "within four months before and three months after" the charged robbery, and "were thus closely proximate in time").


  • [CB] 1. On what point is evidence of prior bank robberies by Gore (Problem 5-G) relevant? Does this use of such evidence involve a propensity argument or something else? Do the features common to what Gore did before and the charged offense amount to a "signature" or distinctive modus operandi suggesting that he probably committed the latter since he committed the former? Compare United States v. Robinson, 161 F.3d 463, 467 (7th Cir. 1998) (in trial for bank robbery on April 8th, admitting proof of defendant's involvement in April 18th robbery, to prove modus operandi; prior act must bear singular strong resemblance to charged offense, and similarities must be sufficiently idiosyncratic to permit inference of pattern; here both robbers entered bank "carrying a distinctive duffel bag in one hand and brandishing a handgun in the other," and "vaulted over the teller counter and demanded money"; in both cases robber emptied drawers by himself after putting gun down; in both cases getaway car was blue Chevrolet Cavalier; robberies occurred within ten days and 25 miles of each other) with United States v. Lail, 846 F.2d 1299,1300-1302(11thCir.1988) (reversible error to admit evidence that defendant committed a prior robbery [485] as proof of modus operandi; both robberies involved lone gunman, handgun, lack of disguise, and proximity, but common elements did not make a "signature" in light of striking differences since earlier crime involved dynamite and culprit who posed as businessman and took hostage).
  • [CB] 2. Suppose defendant wants to prove other crimes by a third person, sometimes called "reverse" 404(b) evidence. By its terms FRE 404(b) applies to such proof, doesn't it? [Cases for and against.]  

NEW Problem 5-G: Was It a Crime or Just a Misunderstanding

  • The Casebook Authors Summarize:
    • There is merit to the defense objection, since one reason we bar character evidence is to keep prosecutors for trying defendants for “being who they are” as opposed to “committing specific crimes.”  Testimony that defendant engaged in innumerable but unspecified instances of bribery tars him with a broad brush and puts him at a disadvantage in defending.  But here the RICO count broadens the concept of intent or mens rea, since defendant is charged with taking bribes as part of an overall and ongoing effort to exploit the court system as an illegal enterprise:  That means it matters less whether the prosecutor proves any particular bribe, for defendant’s activities in aggregate indicate the plan or design. 
  • Actual Case:
    • People v. Glass, 112 P.281 (Cal. 1910).
      • Casebook authors point out that the dissenting Judges in the case argued that the trial court erred in refusing to instruct the jury that the proof could be considered only as proving execution of a conspiracy that “contemplated the bribery” of public officials.
    • Text from the opinion regarding admission of the other bribes:
      • We have before stated that, as a general rule, evidence of a different offense may not be given against a person charged with a particular crime; but, as we have also before stated, there are exceptions to this rule.  Where facts concerning the other offense tend in themselves to prove the defendant guilty of the offense for which he is being tried, they may be proven.  The mere fact that such evidence tends to prove defendant also guilty of another crime does not exclude it, if relevant to the charge for which he is on trial.  The evidence as to the bribery of the other supervisors, we think, is well within this exception to the general rule.  .  .  .   It was the theory of the people that the bribery of Lonergan was in pursuance of a conspiracy on the part of defendant and Halsey and one Zimmer, auditor of the company, to defeat the application of the Home Company by bribing the board of supervisors; that is, a working majority thereof.  The bribery of Lonergan was but a part of the whole – was one step in a proceeding having one purpose and object.  It was shown that checks of the company aggregating between $40,000 and $50,000 were drawn at the request of Zimmer about the latter part of February, 1906.  .  .  .     Statements of banks  .  .  .   showed that checks of the company aggregating $50,000 were paid, or the amounts thereof withdrawn from the accounts of the company as follows: Feb. 23, 1906, $5,000, $5,000, $10,000; Feb. 24, 1906, $10,000, $10,000; and Feb. 26, 1906, $10,000.
      • The statements from the banks show many other withdrawals, but these items are significant as being in round thousands, and as corresponding in the total to the amounts paid the supervisors.   .  .  .    These payments were all made to carry out one plan and purpose – to to secure a majority of the votes of the board of supervisors to defeat the application of the opposition company.  Several of the bribed supervisors returned to Halsey in currency a part of their bribes, aggregating $7,500.  It was shown that a similar amount ($7,500 or $10,000), also in currency, was returned to the cashier of the company by Halsey, and credited in reduction of the amounts charged on the tags above referred to.   .  .  .   
      • The facts testified to by these witnesses, in connection with other facts above mentioned, tended to show that Lonergan was bribed, and with money drawn from the funds of the Pacific States Telephone & Telegraph Company, by Halsey.  ‘If several and distinct offenses do intermix and blend themselves with each other, the details of the party's whole conduct must be pursued.’  Lord Ellenborough in The King v. Whiley, 1 Lead. Crim. Cas. 185. The several briberies were to secure one result, and were part and parcel of one scheme.   .  .  .    The theory of the prosecution in offering said evidence, and of the court in receiving it, was that the evidence is sufficient to charge defendant with criminal responsibility for the various acts of Halsey; and the views we have expressed are based upon such theory, but we do not intimate our views as to the sufficiency of the evidence to support it.


NEW Problem 5-H: "It Was Just an Accident"

  • The Casebook Authors Summarize the Issues:
    • Where the question is whether accident or foul play caused the death of the victim and the prosecutor wants to prove prior acts, there are three main questions:  First, are the prior acts, in their essential characteristics, very similar to the acts in issue?  Second, are they sufficiently unusual that it is highly unlikely that both would go forward without the questioned purpose or intent (in short, that their occurrence isn’t just random coincidence)?
    • Courts routinely invoke the “doctrine of chances” by way of explaining (or at least arguing) that the proof is not being offered in support of the forbidden propensity inference.  The argument is not that “Jim killed his first wife Linda by trapping her under a jacked up car and later tried and finally successfully killed his second wife Mandy.”  Rather, the argument is that few married men lose two spouses to inadvertent accidents happening when husband and wife were alone doing potentially dangerous things, so there must have been some purpose or intentionality behind both events.
    • (1) Very similar? [What would you argue?]
    • (2) Sufficiently Unusual? [What would you argue?]
  • Actual Case:
    • United States v. Henthorn, 864 F.3d 1241 (10th Cir. 2017) .
    • MALAVET: I highly recommend that you read this opinion. It is a rare detailed discussion of the law of FRE 404(b) and the process of applying it including prosecutorial disclosure, motions in limine and an evidentiary hearing before trial.
    • The prosecution had in fact offered a third other act but the trial court did not allow it to be admitted. The opinion discusses the Huddleston factors in detail as well as the process that courts should follow and the standard of review for their decisions.
    • OPINION: Before trial, the government filed a notice of Rule 404(b) evidence, stating that it planned to introduce evidence of three prior incidents involving Henthorn, his wives, and his former sister-in-law: (1) Lynn's death while changing a tire in May 1995; (2) Henthorn's secret acquisition in 2010 of a $400,000 life insurance policy on Grace Rishell (who was married to Lynn's brother) in which he named himself as the primary beneficiary; and (3) a previous injury suffered by Toni in May 2011. The defense objected and filed a motion in limine to exclude the evidence, primarily on the ground that it constituted improper character evidence and was substantially more prejudicial than probative.
  • Pretrial Two-Day Hearing
    • OPINION: To consider the issues, the district court held an extensive, two-day hearing in which it heard evidence from ten witnesses (including seven defense witnesses), received over thirty exhibits, and heard oral argument from both sides. In a subsequent eighteen-page order covering all of the Huddleston factors, the district court ruled that the evidence of both prior incidents involving his wives would be admitted for the limited purpose of proving planning, intent, and lack of accident relating to Toni's death in September 2012 ...
  • Discussion of Huddleston
    • OPINION: ...To determine whether Rule 404(b) evidence is properly admitted, we look to the four-part test from Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988):
      • (1) The evidence must be offered for a proper purpose under Rule 404(b);
      • (2) The evidence must be relevant under Rule 401;
      • (3) The probative value of the evidence must not be substantially outweighed by  [*1248]  its potential for unfair prejudice under Rule 403; and
      • (4) The district court, upon request, must have instructed the jury pursuant to Rule 105 to consider the evidence only for the purpose for which it was admitted. See United States v. Rodella, 804 F.3d 1317, 1333 (10th Cir. 2015), cert. denied, 137 S. Ct. 37, 196 L. Ed. 2d 26 (2016).
    • Admissibility of evidence under Rule 404(b) "involves a case-specific inquiry that is within the district court's broad discretion." United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006) (citing United States v. Olivo, 80 F. 3d 1466, 1469 (10th Cir. 1996)). We review a district court's decision to admit such evidence for an abuse of discretion and "will not reverse unless the district court's decision exceeded the bounds of permissible choice in the circumstances or was arbitrary, capricious or whimsical." Rodella, 804 F.3d at 1329 (citing United States v. Nance, 767 F.3d 1037, 1042 (10th Cir. 2014)).
  • Background


OLD Problem 5-H: The Undercover Cop Trick

    • Heart of the Matter.  The problem with the government’s argument is that Gilmer and Laver apparently simply “fell into” the undercover cop routine.  They didn’t discuss it in advance and approached Waltz with no particular idea of claiming to be cops investigating drug crimes.  Apparently it was Gilmer’s on-the-spot inspiration.  Hence the earlier episode was not planned as a dry run, but was merely a successful spur-of-the-moment caper.  Arguably this fact doesn’t matter:  The fact that Gilmer and Laver thought afterwards that what they did with Waltz turned out so well that they should repeat it with Norton insures a kind of backward-looking relevance:  They modeled their behavior on the occasion of the charged crime on what had worked well previously.   
    • The problem is based on United States v. Goins, 146 Fed.Appx. 41 (6th Cir. 2005).  There the court concluded that admitting proof of the earlier robbery was error, but it affirmed the conviction because the evidence of guilt was “overwhelming.”  Here is the court’s discussion of the evidence issue: 
      • Over the defense’s objection, Jones [Laver] also testified about the Woltz [Waltz] robbery, which he and Goins [Gilmer] perpetrated 12 days before the bank robbery.  We review the district court’s decision to admit this testimony for abuse of discretion.
      • At the pre-trial 404(b) hearing, the government represented that Goins and Jones viewed the robbery of Woltz as a “dry run” for their subsequent crimes, in the sense that they apparently intended to pose as law enforcement officers when they carried out the carjacking.  Consequently, the government moved for the admission of testimony relating to the Woltz robbery on the ground that it was evidence of planning or preparation.  FRE 404(b).  The district court permitted Jones to testify, but his initial testimony did not readily link the Woltz robbery to the carjacking.  Indeed, the only time Jones even connected the Woltz robbery to the later crimes at this initial stage was by way of saying that “bank robbery sort of takes a little working up to; and we were sort of low on cash....”  Jones did say that Goins was “playing around like he’s a police officer” but did not suggest this was a conscious or planned decision, nor that it was reflective of what they intended to do at the later carjacking.  The defense objected and the district court took the matter up after excusing the jury.
      • In the jury’s absence, the district court examined Jones to determine whether his testimony regarding the Woltz robbery was indeed admissible to show planning or preparation.  Jones stated that the purpose in going to the Bristol Mall that day was to find someone to rob because they needed money.  Jones was vague on whether he and Goins had planned to pose as police officers that night, although he stated the two had discussed the idea in the past.  He was definitive on the question whether they already at that time had a plan to steal a car, responding “No, Sir” to the district court’s inquiries on the subject.  To the court’s questions, “Was this any kind of dry run to try out a, a method of operation to rob a bank? ... or to steal a car?”, Jones said: “No, Sir.”  The district court chided the government for presenting testimony that was “totally contrary to what you told me his testimony was going to be.”  Nevertheless, after hearing arguments on whether Jones’s testimony was probative of plan or preparation, the district court held that the testimony was admissible.
      • The jury returned and Jones’s testimony continued where it had left off.  He testified that the two had not planned on impersonating police officers, but that when he saw Goins doing it he took the hint and followed suit.  The ploy worked; Goins sent Woltz looking for his supervisor to rebut Goins’s feigned suspicion that the $200 in cash he had taken from Woltz was drug money.  This gave Goins and Jones an opportunity to disappear, which they did.  According to Jones, the two were amazed at how easy it had been to trick Woltz into thinking they were police officers; they decided it was a “good tactic.”  When it came time for the carjacking nine days later, Jones testified, posing as undercover police officers was the natural choice.
      • While “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” FRCP 404(b), such evidence may be admissible for other purposes, such as the purposes advocated by the government here, namely, “as proof of ... preparation [or] plan.”  There is no dispute that the government provided reasonable notice to Goins (which is required under the rule), so the only issue is whether the district court abused its discretion in admitting Jones’s testimony as proof of preparation or plan. “This Court has established a three-step process for determining the admissibility of other acts evidence under FRE 404(b).  That process is as follows:
      • First, the district court must decide whether there is sufficient evidence that the other act in question actually occurred.  Second, if so, the district court must decide whether the evidence of the other act is probative of a material issue other than character.  Third, if the evidence is probative of a material issue other than character, the district court must decide whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect. Goins’s appeal implicates the second and third of these inquiries; he does not challenge the district court’s conclusion that there was sufficient evidence to conclude the Woltz robbery in fact occurred.
      • We have held that “FRE 404(b) allows the admission of other acts evidence in order to prove ‘plan’ if the purpose is to establish the doing of a criminal act as a step toward completing a larger criminal plan. The gateway requirement is that proof of a larger criminal plan is material. A larger criminal plan would be material if the crime charged and the other acts both constituted parts of the larger plan.” United States v. Fountain, 2 F.4d 656, 667 (6th Cir. 1993).  We have also noted that “preparation or plan [are] not in issue ... [unless], for example, ... the government’s theory of the case [was] that the other acts were preliminary steps necessary to the success of a greater, overall criminal enterprise.”  United States v. Johnson, 27 F.3d 1186, 1194 (6th Cir. 1994). 
      • The government contended at trial that the Woltz robbery was a “dry run” for the carjacking, which Jones and Goins had planned to test the effectiveness of a tactic they intended to use to effectuate the carjacking, i.e., posing as police officers. But the contention that Jones and Goins planned the Woltz robbery as practice for or even in connection with the carjacking was directly contradicted by Jones himself. Jones admitted the two did not have a plan to pose as police officers during the Woltz robbery, testifying instead that Goins unilaterally—and spontaneously—decided to pose as a police officer, so he followed suit. Accordingly, the use of the police impersonation tactic was serendipitous, not planned. Mere “repeated performance” of similar crimes is not probative of a plan; rather, if the other acts evidence is offered to prove plan or preparation (as opposed to, say, identity), “there must ... be an agreement to commit a series of crimes....”  United States v. Phillips, 599 F.2d 134, 136 (6th Cir. 1979).  Here there was no evidence of a prior agreement between Goins and Jones to commit the Woltz robbery and the carjacking as “constituent parts of a larger criminal scheme,” so it was error to admit Jones’s testimony about this prior act.
    • United States v. Goins, 146 Fed.Appx 41, 49-51 (6th Cir. 2005).


OLD Problem 5-H: The Corrupt Judge (plan, design)
Superseded by The Undercover Cop Trick

  • Malavet
    • Consider Arguments for Exclusion
    • Consider Arguments for Admission
    • Consider RICO count; What if that is Gone?
    • The lack of specificity of Neely's testimony made its probative value as direct testimony of bribery very low, whereas the danger of unfair prejudice was quite high. Therefore, the prosecution made the plan/design (i.e., "pattern") argument to increase the probative value.
  • [Argument for Excluding the Evidence]
    • There is some merit to the defense objection, since one of the reasons we bar character evidence is to prevent prosecutors for trying defendants for "being who they are" as opposed to "committing specific crimes." Testimony that defendant engaged in innumerable but unspecified instances of bribery tends to tar him with a broad brush and put him at a disadvantage in defending.
  • [Argument in Favor of Admission]
    • [1. As to RICO]
      • But here the RICO charge broadens the concept of intent or mens rea, since defendant is in effect charged with taking bribes as part of an overall and ongoing effort to exploit the court system as an illegal enterprise: That means it matters less whether the prosecutor proves any particular bribe, for defendant's activities in aggregate indicate the plan or design. Nor does it matter that the bribes to which Rupert referred may be different from the specific bribes charged in other counts.
    • [2. As to Extortion Alone]
      • It is at least arguable that Rupert's testimony is also admissible to show intent to take a bribe in connection with the specific instances (substantive charges here are extortion), since taking numerous bribes in the single professional setting of the courthouse is at least some indication of intent on particular occasions. This point is perhaps less certain, however, and it is at least arguable that lack of specifics deprives this testimony of any tendency to prove intent to bribe (or extort) on other occasions. If this argument prevailed, defendant would be entitled to a limiting instruction that Rupert's testimony is admitted only to show that defendant operated an illegal enterprise, and that the testimony cannot be used to prove Murphy's guilt of specific acts of bribery.
  • [The Actual Case: Objection Overruled]
    • The problem is based on United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), where judge John Murphy was charged with mail fraud (participating in a scheme to secure cash bond refunds to defense counsel; these refunds represented return of bail to defendants charged with traffic offenses), extortion (soliciting and receiving bribes; grateful defense counsel would repay the judge some of what they collected in cash bond refunds), and RICO (operating Cook County Circuit Court as an illegal enterprise).
    • In Murphy, the trial court admitted testimony by police officer James LeFevour, who was a cousin of the Supervising Judge of the Traffic Court (who allegedly arranged and orchestrated the schemes charged in the indictment). LeFevour described handing bribes to defendant Murphy during the five-year period between 1975 and 1980, but admitted that he could not name even one particular instance in which he had done so (prompting the defense to make the Clarence Darrow quip described in the problem).
    • United States v. Murphy, 768 F.2d 1518, 15434-1535 (7th Cir. 1985).


  • [CB] 2. Suppose Judge Murdock takes the stand during the defense case and testifies on direct that he's never taken bribes in his life. Would the prosecutor then have an additional reason to prove he took uncharged bribes? [FRE 404(a)(3)]
  • [CB] 3. How do you distinguish the permissible use of other crimes' evidence to prove a plan and the impermissible use of such evidence to prove conduct on a particular occasion?
  • Malavet
    • Note the use of such evidence in sexual abuse cases described in Note 4.

5.2.b. Prior Acts: Other Purposes & Proof of

OLD Problem 5-I: It was an accident [or abuse]:
Authors' Answers, with my comments.

  • Are two trips enough? [Probably.]
    • We think two prior trips to the hospital are enough, that testimony by a doctor should not be necessarily, and that specific proof that Donna was the parent in charge at the time should not be necessary if it is shown that she is the primary caregiver, but that such proof should be required if Tim spends substantial time in the care of others (like a divorced spouse, inlaw, or daycare center).
  • How many trips?
    • Assuming all three trips to the hospital apparently stemmed from household accidents, and there is no indication of automobile accidents or injuries resulting from criminal assaults by outsiders, three trips to a hospital seem enough. Of course there are three here, since presumably it is uncontested that Tim was injured on the occasion of the charged crime. Ordinarily children do not suffer three serious injuries in domestic accidents in a single year, and the combination here is enough to justify the inference that none was accidental. It would be another matter if the defense could show that Tim was an unusual child who was for some medical or psychological reason prone to injury (which might happen, for instance, if Tim suffered autism or was subject to seizures).
  • Malavet
    • But note that it is possible that too many bad acts would raise the "unfair prejudice" danger by increasing the likelihood that the jury will think that the defendant is a bad person.
  • [(a) Expert testimony required to lay a foundation? NO.]
  • [ (b) Should it be allowed? YES.]
    • We think [it need not be required]: The proposition that are not likely to suffer three domestic injuries requiring hospital treatment in one year children turns on common sense and everyday experience that does not require expertise. A doctor might have useful things to say, however, and might testify, on the basis of examining an injured child, that clinical signs (even the treatment pattern, or the child's or parent's account) are indicators of abuse rather than accident. As students will discover in Chapter 9 (pages 734-740), courts often admit expert testimony describing such things.
  • [The Judicial View]
    • In child abuse cases, the Supreme Court's decision in Estelle v. McGuire, 502 U.S. 62 (1991) (described in note 1 after the problem) strongly supports use of evidence that the victim has been suffered other injuries that appear unusual and serious enough to reflect a pattern of domestic abuse. As illustrated in McGuire, and also in Bowers and Brown, one difficulty in proving prior injuries or treatment is that this "patient history" never comes neatly packaged in a box labeled "what we know the same defendant did before."
  • [Who was in charge? Who actually did it?]
    • Often there is more than one potential villain because more than one person provides care for the child. Sometimes, as in Bowers, there are additional factors that help suggest that defendant must be responsible for what happened before, which makes those events useful in deciding whether defendant is guilty this time too -- in Bowers, there were indications that defendant gave false explanations for prior injuries, which helped show that defendant was responsible for them, hence more likely to be responsible for the injuries leading to present charges. Arguably it should be enough to show that the injuries happened at home, even if the defendant in the case is one of two parents in an intact family: Absent some effort on the defendant's part to report and prevent such injuries, inferences of hostility or indifference to the child's welfare become plausible even if causality is not entirely certain.
  • Malavet
    • Note that the actual charge would substantially change the analysis. As the example I used, if the charge is child endangerment for failing to protect the child, for example, then the analysis in this area would vary.


  • Malavet
    • In the Maravilla case mentioned in note 3, the prior acts were prior smuggling of gold through customs. Maravilla partially reversed the convictions on the ground of violation of the victim's civil rights, but affirmed on the robbery counts, and expressly approved of the admission of prior bad acts evidence.
  • [CB] 4. Beyond the listed uses are others seemingly not mentioned in the Rule but within its contemplation (the list is exemplary rather than exhaustive). See United States v. Scarfo, 850 F.2d 1015, 1019-1020 (3d Cir. 1988) (in trial of organized crime boss for extortion, admitting proof of his involvement in murders to show "tight control over an organization capable of executing those who incurred his displeasure" ); United States v. Mendez-Ortiz, 810 F.2d 76,78-79 (6th Cir.1986) (admitting evidence that defendant sought to bribe a witness, to show consciousness of guilt). [NOTE Contradiction Uses, which we discussed before.] Perhaps especially noteworthy is the fact that a defendant who makes the mistake of testifying falsely that he has "never been in trouble before" may be contradicted by proof of his prior crimes.

Problem 5-I: I didn't Know they were stolen

  • Authors' Answers, with my comments.
  • The facts parallel the facts in the Huddleston case, which we describe in note 2 afterwards.
  • Heart of the Matter. The prior transaction does tend to show knowledge that the cassettes were stolen: [be prepared to articulate how]
  • [Preliminary finding? For the Court but, under 104(a) or 104(b)?]
    • The right answer, in our view, is that the court should decide under FRE 104(a) whether the proffered evidence demonstrates that defendant committed prior acts that bear on such points as knowledge or intent under FRE 404(b). [FRE 104(c)]
  • Malavet
    • Well, the Supremes disagree as the casebook authors concede, but they note that this represents a major departure from the clear and convincing evidence standard that was often applied before Huddleston.
    • (1) Preliminary Finding. The decision in Huddleston concludes that the question whether defendant committed the prior crime is a question of conditional relevancy that falls within FRE 104(b), hence that the jury decides the matter and the judge has no role to play.
  • [Standard of Proof?]
    • (3) Clear and Convincing Evidence. A veritable mountain of pre-Huddleston decisions in federal courts across the country approved the “clear and convincing” standard for proof of prior crimes. Where, as was common, the proof took the form of records of conviction, the standard was satisfied. Even in reported opinions in which proof took the form of testimony (almost always by law enforcement officers), the standard was also viewed as satisfied, so one might ask whether the higher standard served any purpose. In any event, Huddleston rejected the standard, invoking the general principle that individual facts that are offered as part of a circumstantial case against the accused need not satisfy the beyond reasonable doubt standard, and the usual standard is taken to be the preponderance standard.
  • [What Standard Should the Court Apply,
    [(a) Clear and Convincing
    [(b) Preponderance
    [(c) Threshold?]
    • Inevitably proof of such acts is prejudicial (inviting jury misuse, or provoking anger by depicting defendant as a bad person), and the judge in discharging her responsibilities under FRE 403 should take care to admit such proof only if it shows convincingly (see below) that defendant committed the prior acts. Of course the Supreme Court's 1988 decision in Huddleston reached the opposite conclusion (more below).
    • Clear and convincing? Again the right answer in our view is that the proof should satisfy a clear and convincing standard -- the more cautious civil standard that customarily applies in deportation and fraud cases. The risk of unfair prejudice is worth running only where prior acts really do bear on some particular point (like knowledge or intent) and the proof is certain enough so as to leave little doubt that defendant engaged in them. But Huddleston resolves this issue the other way in the federal system.

Proving Prior Bad Acts

Unlike character evidence generally under 404(a), 607, 608 and 609, which is a 104(a) simple admissibility question allocated exclusively to the judge, Prior Bad Acts (404(b)) have been held by the U.S. Supreme Court to fit within the Conditional Admissibility standard of FRE 104(b).

  • [CB] 2. In United States v. Huddleston, 485 U.S. 681 (1988), the Supreme Court answered these questions in favor of the prosecutor. Huddleston announced two conclusions: First, the Rules do not require a [490] "preliminary finding" by the court that the government proved a prior act by a preponderance. Instead the judge makes a "threshold" decision whether the evidence is "probative of a material issue other than character." Second, admitting evidence of prior acts raises a question of relevance conditioned on a fact under FRE 104(b), which is for the jury to decide under the preponderance standard. By this approach, proof of a prior crime is relevant if the jury "can reasonably conclude" by a preponderance that "the act occurred and that defendant was the actor."
  • Malavet
    • The Supreme Court explained that as to RELEVANCE, the standard to be applied by the court in its gatekeeper capacity is minimal: "Minimal Standard"
  • In determining whether the government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ­here that the televisions were stolen-by a preponderance of the evidence. Huddleston, at .

The judge's role at the relevance stage is thus similar to the Summary Judgment Standard. In graphic terms, that might described as follows:


  • Malavet
    • Naturally, these areas are not to scale. The "must be false" and "must be true" areas that would make a finding to the contrary irrational are relatively small, especially when compared to the "reasonable juror" standard. The judge is simply required to find that the prosecution has put the prior act into the "could" area, meaning that a reasonable jury might be able to conclude that the act was proved by a preponderance of the evidence, and then use it to prove knowledge (in Problem 5-J) or any of the other uses that 404(b) allows. If the decision belongs to the Jury after the threshold finding under FRE 104(b), does that mean that the Judge cannot exclude it, as long as the threshold relevance requirement is met? NO, there is still the 403 balance to be performed.
  • [CB, Note 3] In a remarkable footnote [footnote 6], Huddleston agreed "that the strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing." Does it follow that courts can, if they want, reintroduce the clear-and-convincing standard?
  • Malavet
    • How can this 104(b) part of the ruling in Huddleston be reconciled with the test developed by most federal courts after Huddleston, which is discussed at page 480 of your casebook, and which we addressed several days ago:
    • Huddleston test:
      THE JUDGE,
      (a) decides whether the evidence is offered for a proper purpose, [404(b)[2]]
      (b) decides whether it is relevant for that purpose, [FRE 401&402]
      (c) decides whether its probative worth is outweighed by the risk of unfair prejudice, [FRE 403] and
      (d) gives a limiting instruction on request. [FRE 105]
    • [Note that I generally force you to think about evidential hypos sooner rather than later because I want you to always identify multiple relevance hypos as early as possible. This is especially important in this area where some relevance hypos are legally inappropriate by application of a rule, e.g., 404(a) and 404(b)[1], while others are proper, e.g., 404(a)(1),(2),(3) and 404(b)[2].]
  • [The four-part test is described in a paragraph at page 410 of the casebook. [CB-410]
    • Yet in such cases the risk of prejudice to the defendant is manifest: Obviously the court must carefully analyze probative worth and risks of unfair prejudice and confusion of issues, and often the proof is excludable under FRE 403 even though it is marginally relevant on some point. Many courts endorse a four-part test or process under which the judge (a) decides whether the evidence is offered for a proper purpose, (b) decides whether it is relevant for that purpose, (c) decides whether its probative worth is outweighed by the risk of unfair prejudice, and (d) gives a limiting instruction on request. See Huddleston v. United States, 485 U.S. 681 (1988). [Note the emphasis on FRE 403.]
  • Malavet: Relevance Analysis
    • Essentially: as to proper relevance purposes, there are in effect TWO required relevance findings. One is the JUDGE's finding of whether evidence fits within one of the established exceptions to the general prohibition against character evidence. For example, the alleged sale of stolen TVs could, if believed by the jury, prove an ultimate issue in the case, namely, that the defendant knew that the videotapes were stolen property. (Note that this makes the evidence probative of a permissible relevance point, thus fitting within the 404(b)[2] exception). This part of the analysis belongs exclusively to the judge. I think that this is in fact a 104(a) exercise, but whether the court is acting under FRE 104(a) or FRE 104(b), as to this part of the analysis was not that important to the Supreme Court.
    • What mattered to the court, however, was that, assuming a favorable ruling as to the question of simple relevance, there is still another (now conditional) relevance question to be answered: did the prior act occur. The judge cannot decide credibility, therefore, under FRE 104(b), she must admit the relevant prior acts evidence if the government adduces enough proof so that a reasonable jury could find by a preponderance of the evidence that such acts did in fact occur. (The judge has already decided what the permissible inferences that the jury can draw from the facts are).
    • (Another simpler way of looking at it is that the threshold question of admissibility breaks down into two parts: (1) the legal propriety of the government's relevance hypothesis (a legal question that is fully for the judge to decide); and (2) the factual sufficiency of their proof (a question in which the judge makes a simple ruling that reasonable minds could or could not find the facts. This is analogous to a Summary Judgment or Judgment as a Matter of Law in civil procedure.).
    • If you get this far, i.e., if the evidence may be admitted. But, it must pass the final hurdle, FRE 403. NOW THEN comes the balancing of the legitimate uses of prior acts evidence against those prohibited by the general character rule of 404(a) (supplemented by 405(a)) and by the specific prohibition of 404(b)[1]. We played enough with argument/counterargument on the balancing in class.
    • Finally, if the evidence is admitted, upon request, a rule 105 instruction should be given on the proper use of the evidence.
    • The possibility of using a specific-question verdict form to ensure that the jury understands the "use of evidence" instruction was raised in class. I think that this is a clever argument, but it is unlikely to be accepted by the courts (most courts HATE complex verdict forms because they undermine the verdict in a way that courts find inappropriate). But, make the argument.
  • [The famous footnote 6 in Huddleston, reads as follows:]
    • n6 Petitioner also suggests that in performing the balancing prescribed by Federal Rule of Evidence 403, the trial court must find that the prejudicial potential of similar acts evidence substantially outweighs its probative value unless the court concludes by a preponderance of the evidence that the defendant committed the similar act. We reject this suggestion because Rule 403 admits of no such gloss and because such a holding would be erroneous for the same reasons that a preliminary finding under Rule 104(a) is inappropriate. We do, however, agree with the Government's concession at oral argument that the strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing. Tr. of Oral Arg. 26.
  • Malavet
    • Both the Supreme court and federal courts trying to follow Huddleston tend to emphasize the FRE 403 obligation of the trial judge to balance the unfair prejudice character dangers against the limited legitimate uses of the evidence.
  • [CB] 6. What if defendant was charged but acquitted of a prior crime in a trial on the merits? In Dowling v. United States, 493 U.S. 342 (1990), the Court approved testimony describing a crime that led to acquittal. Dowling was a prosecution for bank robbery in which the culprit wore a ski mask and carried a pistol. The trial court let Vena Henry testify that defendant and a man named Christian assaulted her at home two weeks after the bank robbery, and that defendant was wearing a knit mask with cutout eyes and carrying a handgun (she could identify him because the man who assaulted her was unmasked in a struggle). But Dowling had been acquitted of charges arising out of the assault, and in the later bank robbery trial the government offered Henry's testimony to strengthen the identification of Dowling as the bank robber and link him with Christian (getaway driver). The Court held that the acquittal did not block Henry's testimony under a concept of collateral estoppel found in the Double Jeopardy Clause, pointing out that the assault on Henry was not an ultimate issue in both the prior and the present case and that Huddleston requires only that the prosecutor prove the prior crime [to the jury] by a preponderance (not beyond reasonable doubt, as required in the prior proceeding).
  • ***
  • Malavet
    • But note that you might be able to exclude it if there is evidence of actual innocence, rather than mere acquittal for failure of proof to reach beyond a reasonable doubt.
  • [CB] (c) In a second prong of the Dowling opinion, the Court stressed that defendant failed to show that the acquittal indicated he "was not one of the men" in the assault (because the jury might have agreed with his claim that the intruders were trying to retrieve money, not commit robbery), and declined to make the prosecutor prove this point. Even if the Court decides collateral estoppel applies, the second prong of Dowling will still make things pretty hard on defendants, won't it, because of the difficulty of knowing the basis for the jury's verdict?
  • Malavet
    • Note 2 explains that states are not bound by Huddleston. Florida, I am told, applies a clear and convincing evidence standard. I assume that jurisprudentially the Florida courts are required to make the finding themselves.