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Prior Bad Acts An Introduction to 404(b)
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How can you use PBAs: 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?
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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)
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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)
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If the PBA is being offered to prove anything else (i.e., not being used to show character at all) 404(b) 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:___________
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404(b)
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Two Categories Using PBA to show the charged state of mind. Using PBA to show commission of the charged conduct.
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States of Mind Motive (as element) Intent (as element) Knowledge (as element) Absence of Mistake or Accident
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Commission of Conduct Identity ( signature or M O ) Motive ( as evidence of act ) Knowledge ( as evidence of act ) Opportunity Preparation Plan
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Two Meanings of Motive Bad motive as an element. Motive to show commission of the charged conduct.
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OJ Charged With Nicole’s Murder Folks who hit X are SML to be hostile to X. OJ previously hit Nicole OJ killed Nicole Folks who are hostile to X are SML to kill X Motive (hostility) makes physical conduct SML OJ hostile to Nicole
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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 ER Called Other EE a N_______ ER Hostile to Blacks No EH Needed Motive (racial hostility) an element P has to prove. ER Hostile to Blacks
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