0703

I would argue:

"The evidence of prior acts of violence toward his ex-wife is not being offered to establish that yet another act of violence was committed. It is being offered to help prove a specific intent -- malice -- which is an element of malicious destruction of property. Intent is one of the exceptions listed in Rule 404(b). A series of cruel acts toward the same person tends to prove malicious intent."

Hickman is charged with three offenses, and only one has malice as an essential element, so it is important that you specifically identified that offense as the one to which the evidence was relevant. It is not admissible to show general intent to commit arson.

The defense would be entitled to ask for a limiting instruction under Rule 105, but why bother?  The jury’s heard it, and you’ll just end up emphasizing it:

Prosecutor [direct of victim]: Isn’t it true your husband Matt beat you on average of twice a month over the entire 6 years of your marriage?
Defense: Evidence that he beat his wife regularly is inadmissible character evidence.
Prosecutor:  We are offering it only to show malice toward her, an element of malicious destruction of her property.
Court: The evidence is admissible.  You may answer.
Witness: Yes.
Defense: We request a limiting instruction under Rule 105.
Court: Members of the jury. The witness testified her husband beat her regularly. This evidence of a pattern of beatings may be considered by you only on the issue of malice, not on his general character.

Questions? Email tanford@indiana.edu,and refer to 0703.

Problem 7B, part two. When arrested, Matt claimed to the police that the truck fire was accidental. The prosecutor calls as his second witness, Detective Russell to testify that she investigated a case of truck arson three years before in which Matt was seen on surveillance entering Designscape after hours and just before two trucks were burned. The defense attorney objects that this is improper character evidence. The prosecutor responds that it is being offered to negate the possibility that the truck fire in the present case was a mistake or accident, and to prove that it was intentional, both of which are Rule 404(b) exceptions.
What argument should the defense make in reply? [Think this through carefully, the answer may be hard to see].

When you think you know the answer (or have given up), click here .