0709
I see two possible ways to object:
(1) "I object under Rule 403 that the testimony about the defendant always being a bad driver is of little or no probative value because there has been no proof of similarity of conditions, and it will confuse and distract the jury away from deciding whether she was driving negligently in this case.
(2) "I object under Rule 404 that the testimony about Jane always being a bad driver is just character evidence in disguise, merely describings a tendency to behave in a certain way.
Then, you wait to see what the plaintiff does. If the plaintiff responds that this is habit, then you make the arguments from the previous screen why it is not.
Questions? Email tanford@indiana.edu and refer to 0709.
In the Movie "Adam's Rib," Doris Attinger is on trial for the attempted murder of a woman named Beryl Cain. The state contends that Doris was angry because their marriage was on the rocks. The anger was directed at "another woman," whose identity she did not know but whom she assumed must exist and must be responsible for the fact that Warren no longer loved her. One day when Warren went out to try to sell insurance to Beryl, Doris followed him because she thought he was going to meet his lover. She assumed that Beryl was having an affair with Warren, and shot her. The defense asserts that Warren and Beryl were in fact having an affair, and that Doris acted in the heat of passion upon discovering them together, and therefore lacked mens rea.
The transcript begins with Beryl Cain on the stand.
Prosecutor: and then what happened?
A: I heard a noise, and then I--
Q: What kind of a noise?
A: Like a sound. Like a loud sound going off. So I jumped up, and all of a sudden I saw her -- Mrs. Attinger. She was comin' after me with this gun of hers, right in her two hands, so I guess I must have started to conk out or somethin'. 'Scuse me, to faint or something. So then Mr. Attinger grabbed me, so's I shouldn't fall down, I guess, and then Mrs. Attinger tried to kill me.
Defense: Objection. Will the court please instruct the witness to refrain from testifying to conclusions.
Judge: Sustained. Jury, disregard reply. Strike from record. Witness will please confine herself to the recital of facts.
Q: What did she do?
A: Well, she shot me, at me. I mean, she tried to shoot me.
Q: How do you know that?
A: Because she did it. So then he jumped in front of me -- Mr. Attinger, that is -- and I ran out in the hall hollering, and, then I fainted and -- everything went black.
Prosecutor: Your witness.
Defense: Everything went black a little earlier, didn't it, Miss Cain?
A: What?
Q: I refer to the color of the black silk negligee you put on to receive Mr. Attinger.
If the prosecutor objected to this evidence under Rule 404(b) as an inadmissible act of bad character, how should the defense respond? When you think you know the answer, click here.