Evidence regardless of whether it is corroborated or

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evidence regardless of whether it is corroborated or whether there was an eyewitness. Habit o Habit v. Character Habit is automatic and unconscious, specific and repeated actions. o Habit can be proven by opinion and specific instances. However, specific instances are the most used. Routine Practice o These are mainly for businesses. Crimes or Other Acts 404(b). Crimes, Wrongs, or Other Acts o (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. o (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice. 404(b) only applies to “other crimes”—not acts that are part of the same misconduct. o Two tests to determine this: (1) Is the other crime’s evidence “inextricably intertwined” with the charged crime? Things immediately prior to, or occurring at or some time immediately after or caused by the act. (2) Is the “other act” so closely related in time and subject matter to the charged act as to be part and parcel of the charged act, not extrinsic to it? In Relation to 404(a). o 404(b) is not offered to prove character. o Proponent thus has to prove non-character reason for use. Page 17 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar 403 analysis comes in. o Factors for Probative Value of 404(b) Strength of the evidence. This is the conditional relevancy test under 104(b). Probative value in proving the fact for which the “other act” evidence is offered. Availability of other, less prejudicial evidence. Whether other act evidence is disputed and to what degree. o Factor for Prejudice of 404(b) Relative heinousness of the other act. Similarity of other act to charged crime. Mnemonics for “Another Purpose” 404(b) Can Be Used For o KIPPOMIA Knowledge Intent Preparation Plan Opportunity Motive Identity Absence of mistake or accident o MIMIC Motive Intent Mistake or accident (lack thereof) Identity Common scheme (modus operandi) Subsequent Remedial Measures 407. Subsequent Remedial Measures o When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.
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