1. Prosecutors love to prove that a defendant has a prior criminal record because it effectively negates the presumption of innocence. Empirical studies show that jurors are willing to give an accused the benefit of the presumption of innocence only if this is the accused's first offense. Once he has proved himself to be "a criminal," the jury assumes he is guilty. However, proving that the defendant is a criminal or has criminal tendencies would seem to be prohibited as character evidence.
2. The admissibility of evidence of crimes other than the one for which the defendant is on trial is unique among character issues. It comes up so often in criminal cases that it has its own special rule, Rule 404(b) . Note that the definition of "other crimes" is broad -- the Rule refers to "a crime, wrong, or other act" and does not say that those other acts need ever have resulted in arrest, prosecution, or conviction or even be criminal.
3. Rule 404b does not specify what TYPES of evidence fall into this category, so it may apply to a broad range of evidence -- a certified copy of a court record of conviction, a witness who claims to have seen the defendant commit a criminal act that was never reported to the police, and most commonly, a person who claims to have been the victim of a prior crime (e.g., domestic violence), or the recipient of threats.
4. Although Rule 404(b) usually comes up in criminal cases, some states (but not all) apply it to civil cases as well.
5. Rule 404(b) restates the general rule that evidence of bad character (in this case, prior crimes and acts) is not admissible to prove that the defendant has criminal tendencies.
6. However, Rule 404(b) provides that such evidence may be admissible for any of nine other reasons:
--Motive
--Opportunity
--Intent
--Preparation
--Plan
--Knowledge
--Identity
--Absence of mistake
--Lack of accident
7. Even if evidence falls into one of these nine categories, it is not automatically admissible. It merely removes the evidence from automatic exclusion under
Rule 404, because it is relevant for a purpose other than to show criminal tendencies. As with any relevant evidence, its admissibility will therefore be
determined by Rule 403.
...a) Evidence that the defendant committed crimes other than and in addition to the one for which he is on trial has obvious prejudicial effect. It arouses the
emotions of the jury and tends to confuse the issues, as the defendant must now defend himself against more than one charge.
...b) Evidence of a prior act unrelated to the present one is also normally of low probative value, because it is remote from the elements of the current indictment.
...c) Therefore, as a general rule, evidence of other crimes offered under Rule 404(b) should normally be excluded under Rule 403 as too prejudicial and
insufficiently probative, unless one of the nine non-propensity reasons is a genuinely disputed issue.
8. As a general rule, the judge cannot know whether one of these nine issues is genuinely disputed until after the defense presents its case, so the evidence is usually not admissible until rebuttal.
9. A plea of "not guilty" places identity and motive in issue. It does not place the other 7 exceptions at issue.
10. IDENTITY. Other crimes (usually several for the same offense) are admissible if:
a) identity is disputed,
b) the other crimes were committed reasonably close in time to the charged offense
c) the state can show that the defendant committed the other crimes
d) all crimes were committed in a distinctive and unique way, so that we can say confidently that the same person committed all of them
10. MOTIVE. Another crime (usually one crime different from the one charged) is admissible if:
a) motive is disputed
b) the other crime was committed reasonably close in time to the charged offense
c) the state can show that the defendant committed the other crime
d) the other crime establishes a unique motive for the crime charged beyond the motives of others who commit this same crime.
..... PROPER USE: A defendant is charged with the murder of Adam. The state proves he was previously charged with extorting money from Adam's
Market. Adam was the main witness against him. The State claims his motive to kill Adam was to prevent him from testifying.
..... IMPROPER USE. A defendant is charged with the armed robbery of Barbara. The state offers evidence that the defendant is a cocaine addict. The State
claims that the defendant's motive to rob Barbara was to get money for his addiction. The motive is not unique -- everyone who commits robbery is motivated
by a desire for money.
11. INTENT, ABSENCE OF MISTAKE, LACK OF ACCIDENT (MENS REA). Other crimes (usually several similar ones) are admissible if:
a) The defendant denies some aspect of mens rea by claiming he did not intend harm, acted under a mistake, or that the harm was an accident.
b) The other crimes were committed reasonably close in time to the charged offense
c) The state can show that the defendant committed the other crimes
d) The state can show that the defendant had the requisite intent when the other crime was committed. Example: A defendant is charged with manslaughter
for shooting another hunter while hunting. He claims the gun went off by accident. The State could prove that on several prior hunting trips he intentionally
fired his gun toward fellow hunters to warn them to stay away from his favorite hunting spot.
12. KNOWLEDGE. Situations in which another crimes is admissible to show knowledge are rare because knowledge is not a commonly disputed fact. The most common situation is a person arrested for possession of drugs who claims someone gave him the package to hold and he did not know what was in it. The State could prove that he had possessed drugs on prior occasions to refute his claim.
13. OPPORTUNITY, PREPARATION AND PLAN. Other crimes are theoretically admissible to prove opportunity, preparation or plan if any of those
issues are genuinely contested, but such situations are rare.
a) If a defendant claims to have had no opportunity to commit this crime because he was out of town, evidence that he was seen in town on the day of the
crime selling drugs would be relevant.
b) The fact that the defendant took steps to make preparations for a crime is circumstantial evidence he later committed it, even if the preparations involved
criminal activity (e.g., stealing a car to be used as the getaway car).
14. Additional common law exception -- In some states, evidence of criminal acts committed at the same time as the crime charged is admissible to "complete the telling of the story." For example, a defendant charged with robbery may have fled in a car stolen in a different state. The officer who apprehended him may describe the stolen car even though it is an "other crime," in order to complete the story of the robbery. Evidence offered to complete the story is analyzed under Rule 403, not 404.
1. A pattern of behavior constitutes character evidence if the best you can prove is that a person usually behaves in a certain way, or has a tendency to behave
that way. Character evidence is not admissible. A pattern of behavior constitutes habit evidence if you can convince a judge that the person always behaves
in a certain way under circumstances similar to the ones at the time of the crime or event being litigated. Evidence of habit is admissible. Rule 406.
2. If an individual always does something a certain way, it's called a habit. If an organization, corporation or group of any kind always does something a
certain way, it's called a custom. Both are admissible.
3. Habit and custom are generally proved by opinion testimony under the following guidelines:
a) The witness must have personal knowledge of the person or organization whose conduct is at issue.
b) The witness must have observed a large number of situations similar to the one at issue.
c). The person or organization must always have responded to the situation in a particular way. It is not enough that the person or organization usually acts in
a certain way.
4. Witnesses may testify to their own habits as well as the habits of others