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Prior Bad Acts An Introduction to 404(b)

Prior Bad Acts An Introduction to 404(b). If the PBA is being offered to prove character itself ? If the PBA is being used to prove action in conformity ? If the PBA is being used for anything else ?. How can you use PBAs:.

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Prior Bad Acts An Introduction to 404(b)

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  1. Prior Bad Acts An Introduction to 404(b)

  2. If the PBA is being offered to prove character itself? If the PBA is being used to prove action in conformity? If the PBA is being used for anything else? How can you use PBAs:

  3. If the PBA is being offered to prove character itself (because character is an element) • You can use extrinsic evidence of the PBA -- which means: • Call a witness to testify to the PBA. • Offer a document to show the PBA. • You can use PBA on cross. • The applicable rules are:___________ 404 405(a)

  4. If the PBA is being offered to prove action in conformity (under criminal case exception) • You can use PBA on cross. • You can not use extrinsic evidence of the PBA -- which means you cannot: • Call a witness to testify to the PBA. • Offer a document to show the PBA. • The applicable rule is:___________ 405(a)

  5. If the PBA is being offered to prove anything else (i.e., not being used to show character at all) • You can use extrinsic evidence of the PBA -- which means: • Call a witness to testify to the PBA. • Offer a document to show the PBA. • You can use PBA on cross. • The applicable rule is:___________ 404(b)

  6. 404(b)

  7. Two Categories • Using PBA to show the charged state of mind. • Using PBA to show commission of the chargedconduct.

  8. States of Mind • Motive (as element) • Intent (as element) • Knowledge (as element) • Absence of Mistake or Accident

  9. Commission of Conduct • Identity (signature or M O) • Motive (as evidence of act) • Knowledge (as evidence of act) • Opportunity • Preparation • Plan

  10. Two Meanings of Motive • Bad motive as an element. • Motive to show commission of the chargedconduct.

  11. OJ Charged With Nicole’s Murder Folks who hit X are SML to be hostile to X. Folks who are hostile to X are SML to kill X OJ previously hit Nicole OJ killed Nicole OJ hostile to Nicole Motive (hostility) makes physical conduct SML

  12. ER Sued for Refusing to Hire Black EE Due to Race Folks who use racial epithets toward a Black are SML to be hostile to Blacks No EH Needed ER Called Other EE a N_______ ER Hostile to Blacks ER Hostile to Blacks Motive (racial hostility) an element P has to prove.

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