OTHER ACTS OR OCCURRENCES

§ 1. Civil Cases
§ 1(a). Purposes for which Other Act Evidence May Be Offered
§ 1(a)(i) Res Gestae
§ 2. Criminal Cases

See also: ADVERSE REACTION REPORTS; ARRESTS
AUDITS; BIAS; CHARACTER
CHILD ABUSE–Defendant’s Prior Acts of Sexual Assault; CONVICTIONS
CUSTOM; DISCRIMINATION
HABIT; EXCESSIVE FORCE
HARASSMENT; INVESTIGATION; PROSECUTION; REMEDIAL MEASURES
RES GESTAE; ROUTINE PRACTICE
SEXUAL ASSAULTS–Defendant’s Prior Sexual Assaults.

1. Civil Cases Generally

Other crimes, wrongs or acts committed by a party ordinarily may not be introduced to show a predisposition to commit the wrongful act at issue in the case.{footnote}FRE 404(b).
Cal. Evid. Code § 1101(b) (West 1966 & Supp. 1993); Fla. Stat. Ann. § 90.404(2)(a) (West 1979 & Supp. 1992); La. Code Evid. Ann. art. 404(B) (West Supp. 1993); Okla. Stat. Ann. tit. 12, § 2404 (West 1993).
{/footnote} See CHARACTER. To be admissible, the "other act" evidence must meet four requirements: (1) it must be offered for a proper purpose; (2) it must be relevant; (3) its probative value must not be substantially outweighed by its potential for unfair prejudice; and (4) it must be accompanied by a limiting instruction to the jury upon request.{footnote}Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364 (1st Cir. 1991); J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259 (3d Cir. 1994); Orjias v. Stevenson, 31 F.3d 995 (10th Cir. 1994), cert. denied, Louisiana-Pacific Corp. v. Orjias, 115 S.Ct. 511, 130 L.Ed.2d 418.{/footnote} See also PREJUDICE. Courts have wide discretion in excluding such evidence.{footnote}Walters v. Monarch Life Ins. Co., 57 F.3d 899 (10th Cir. 1995).{/footnote}

1(a). Purposes for which Other Act Evidence May Be Offered

Other act evidence may be offered for any relevant purpose, but not to show character or action in conformity therewith.{footnote} [2909] In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804 (2d Cir. 1994), cert. denied Pan American World Airways, Inc. v. Pagnucco, 115 S.Ct. 934, 130 L.Ed.2d 880; Donald v. Rast, 927 F.2d 379 (8th Cir. 1991), cert. denied, 502 U.S. 827, 112 S. Ct. 96, 116 L.Ed.2d 68 (defendant police officer’s prior reprimands inadmissible in § 1983 case).{/footnote} Discussed below are some common purposes for which this type of evidence is frequently offered, but others are certainly possible. A limiting instruction should be given to the jury as to the purpose for which the evidence may be considered.{footnote}Orjias v. Stevenson, 31 F.3d 995 (10th Cir. 1994), cert. denied, Louisiana-Pacific Corp. v. Orjias, 115 S.Ct. 511, 130 L.Ed.2d 418.{/footnote}

1(a)(i). Res Gestae

Res gestae evidence of other acts is not within the scope of Federal Rule 404(b).

1(a)(ii). Knowledge, Motive or Intent

Other acts are admissible to show a party’s state of mind at the time of the events at issue in the case, such as knowledge,{footnote}Turley v. State Farm Mutual Auto Ins. Co., 944 F.2d 669 (10th Cir. 1991)(in suit to recover under theft insurance policy, evidence of insured’s prior insurance scam admissible to show knowledge, intent, and absence of accident or mistake).{/footnote} motive,{footnote}Kopf v. Skyrm, 993 F.2d 374 (4th Cir. 1993); Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987) (evidence that co-worker also fired after campaigning for unsuccessful candidate admissible to show motive for firing plaintiff); Duckworth v. Ford, 83 F.3d 999 (8th Cir. 1996)(in First Amendment retaliatory discharge action, judgment against defendant in similar suit relating to same time period admissible).

But see Berkovich v. Hicks, 922 F.2d 1018 (2d Cir. 1991)(in false arrest case, evidence of other complaints against officer offered to show improper motive excluded where officer exonerated in all but one, and that one involved only abusive language){/footnote} intent,{footnote}Turley v. State Farm Mutual Auto Ins. Co., 944 F.2d 669 (10th Cir. 1991)(in suit to recover under theft insurance policy, evidence of insured’s prior insurance scam admissible to show knowledge, intent, and absence of accident or mistake).{/footnote} and lack of mistake or accident.{footnote}Phillips v. United States, 73 F.3d 939 (9th Cir. 1996)(deliberate prefernial payments to other creditors relevant to prove deliberate failure to pay withholding taxes); Turley v. State Farm Mutual Auto Ins. Co., 944 F.2d 669 (10th Cir. 1991)(in suit to recover under theft insurance policy, evidence of insured’s prior insurance scam admissible to show knowledge, intent, and absence of accident or mistake).

Check Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir. 1993), cert. denied 114 S.Ct. 1844, 128 L.Ed.2d 470.{/footnote} Such evidence is only admissible where state of mind is a relevant issue.

1(a)(iii). Pattern or Modus Operandi

"Other bad acts" are admissible to show a pattern or modus operandi, and thereby establish the actor’s identity as being the defendant.{footnote} J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259 (3d Cir. 1994).{/footnote}

1(a)(iv). Plan or Scheme

Proof of a plan or scheme may be introduced through evidence of other wrongful acts.{footnote}But see Jankins v. TDC Management Corp., Inc., 21 F.3d 436 (D.C. Cir. 1994)(developer’s other disputes with subcontractors inadmissible to show plan or scheme where remote in time and no common plan or scheme to commit fraud shown).{/footnote}

1(b). Proximity in Time

Other acts must be reasonably close in time to alleged offense to be admissible.{footnote}Jankins v. TDC Management Corp., Inc., 21 F.3d 436 (D.C. Cir. 1994)(developer’s other disputes with subcontractors inadmissible to show plan or scheme where remote in time and no common plan or scheme to commit fraud shown).{/footnote} See also CONVICTIONS.

1(c). Other Tort Suits Brought by Plaintiff

Evidence that a tort plaintiff has brought other lawsuits might be relevant to credibility if it suggests improper motives, but even then its probative value is likely to be held outweighed by the danger of confusion and prejudice, and the public policy in favor of seeking legal redress for injuries.{footnote} [2918]Zabner v. Howard Johnsons, Inc., 227 So.2d 543 (Fla. 1969).{/footnote} See CONFUSING EVIDENCE; PREJUDICE. One situation where such evidence is more likely to come in is where the other claims were false and were factually similar to the present one.{footnote} [2919] 69 ALR 2d 609.
]{/footnote} Another is where similar injuries were alleged and there is thus an issue of causation.{footnote}Brown v. Affonso, 185 Cal. App. 2d 235 (1960).{/footnote}

2. Particular Actions

2(a). Products Liability

2(a)(i). Pre-Sale Accidents or Injuries Caused by Product

Prior accidents or injuries caused by the defendant’s product are relevant if the circumstances were "substantially similar,"{footnote}Barker v. Deere & Co., 60 F.3d 158 (3d Cir. 1995)(other tractor accidents inadmissible to show defect); Estate of Carey by Carey v. Hy-Temp Mfg., Inc., 929 F.2d 1229 (7th Cir. 1991)(product liability); Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496 (8th Cir. 1993); Pau v.Yosemite Park and Curry Co., 39 F.3d 1187 (9th Cir. 1991)(previous bicycle accidents involving same bicycle rental company excluded as too dissimilar); Ponder v. Warren Tool Corp., 834 F.2d 1553, 1559-60 (10th Cir. 1987)(tire explosions not sufficiently similar).

But see Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir. 1993)(other automobile accidents inadmissible to show notice of defect because too dissimilar; where offered to show notice, circumstances of other accidents must be "reasonably similar"; if offered for any other purpose, circumstances must be "closely similar" to accident at issue).{/footnote} the incidents arose from the same cause,{footnote} [2922]Uitts v. General Motors Corp., 411 F. Supp. 1380, 1382 (E.D. Pa. 1974), aff’d, 513 F.2d 626 (3d Cir. 1975).
            Freed v. Simon, 122 N.W.2d 813, 814 (Mich. 1963); Narring v. Sears, Roebuck & Co., 229 N.W.2d 901, 904-05 (Mich. 1975).{/footnote} and the evidence does not pose a serious threat of delay,{footnote} [2923]Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir. 1984)(in wrongful death action against tampon manufacturer alleging failure to warn, no abuse of discretion to exclude consumer complaints given how time-consuming it would be for the manufacturer to respond to each complaint); Uitts v. General Motors Corp., 411 F. Supp. 1380, 1383 (E.D. Pa. 1974), aff’d, 513 F.2d 626 (3d Cir. 1975)(excluding 35 reports of other accidents involving similar vehicles).{/footnote} confusing the issues{footnote} [2924]Uitts v. General Motors Corp., 411 F. Supp. 1380, 1383 (E.D. Pa. 1974), aff’d, 513 F.2d 626 (3d Cir. 1975)(excluding 35 reports of other accidents involving similar vehicles)
            CHECK John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 636 (3d Cir. 1977); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1160-62 (E.D. Pa. 1980), modified sub nom. In re Japanese Elec. Prod. Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev’d, 475 U.S. 574 (1986).{/footnote} or unfairly prejudicing the other party.{footnote} [2925]Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496 (8th Cir. 1993); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y. 1975).
            32 Robitaille v. Netco Community Theaters, 245 N.E.2d 749 (Mass.1940); Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993).
            But see Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir. 1993)(probative value of evidence of nine other complaints regarding several lines of cars and dissimilar defects held outweighed by danger of unfair prejudice to manufacturer).{/footnote} See CONFUSING EVIDENCE; PREJUDICE. Such evidence must also not be too remote in time to be probative.{footnote}Hicks v. Six Flags Over Mid-America, 821 F.2d 1311 (8th Cir. 1987).
            Freed v. Simon, 122 N.W.2d 813, 814 (Mich. 1963); Maerz v. United States Steel Corp., 323 N.W.2d 524, 531 (Mich. App. 1982).{/footnote} The evidence is deemed relevant to show defect,{footnote}Barker v. Deere & Co., 60 F.3d 158 (3d Cir. 1995)(other tractor accidents inadmissible to show defect); Woods v. Burlington Northern R.R., 768 F.2d 1287 (11th Cir. 1985)(proof of other accidents to show area unsafe for traffic); Exum v. General Elec. Co., 819 F.2d 1158 (D.C. Cir. 1987).

Schaffner v. C&NW, 129 Ill.2d 1, 541 N.E.2d 643 (1989)(prior accidents involving quick-release bicycle wheel).{/footnote} magnitude of danger involved,{footnote}Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993)(difficulty of putting out fires started in clothing by faulty lighter).{/footnote} lack of safety for intended use, notice of defect (see below), causation, ability to correct known defect and the standard of care{footnote} [2929] 70 Dyas v. Southern Pacific Co., 140 Cal. 296 (1903).

Check McKnight by and through Ludwig v. Johnson Controls, 36 F.3d 1396 (8th Cir. 1994).{/footnote} but is not admissible to show that the defendant has been negligent before. The minority view would admit such evidence to show notice even if the circumstances differ substantially [?]{footnote}Hecht Co. v. Jacoben, 180 F.2d 13 (D.C.Cir. 1950).

See also Seese v. Volkswagenwerk A.G., 648 F.2d 833 (3d Cir.), cert. denied, 454 U.S. 867 (1981)(accident records from other vehicle roll-overs admissible even though lacking in detail as to circumstances).{/footnote}

2(a)(i)(A). Proving Notice of Defect

Prior accidents or injuries caused by the defendant’s product are deemed relevant to show that a manufacturer had notice of the alleged defect.{footnote}Borden, Inc. v. Florida East Coast Ry., 772 F.2d 750 (11th Cir. 1985).{/footnote} Where prior accidents are offered to prove notice of defect, the proponent must establish that the defendant was made aware of the prior accidents thought claims, lawsuits, or otherwise.{footnote}Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir. 1993)(other automobile accidents inadmissible to show notice of defect because too dissimilar, and no evidence that manufacturer put on notice of accidents through claims or lawsuits); Bilski v. Scientific Atlanta, 964 F.2d 697 (7th Cir. 1992)(fall from satellite dish).{/footnote} In addition, some courts have held that a more relaxed standard applies in determining whether such accidents are similar enough to be admitted.{footnote}Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995)(prior accidents need only be sufficiently similar to make manufacturer aware of dangerous situation); Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir. 1993)(other automobile accidents inadmissible to show notice of defect because too dissimilar; where offered to show notice, circumstances of other accidents must be "reasonably similar"; if offered for any other purpose, circumstances must be "closely similar" to accident at issue); Estate of Carey by Carey v. Hy-Temp Mfg., Inc., 929 F.2d 1229 (7th Cir. 1991).{/footnote}

As an alternative to admitting evidence of prior accidents to prove notice, it has been held that the court has the discretion to bar the evidence as substantially more prejudicial than probative{footnote} [2934]See Yellow Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239, 1242-43 (5th Cir. 1974)(affirming trial court’s exclusion of prior complaints and lawsuits against defendant offered to prove notice due to "faint probative value" and "high potential for unfair prejudice").{/footnote} and instead instruct the jury that the manufacture received notice of the alleged defect through prior complaints.{footnote}Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995).{/footnote}

2(a)(ii). Post-sale Accidents or Injuries Caused by Product

Subsequent accidents or injuries caused by the defendant’s product, even under substantially identical circumstances, are of course not relevant to show notice,{footnote}Cameron v. Otto Bock Orthopedic Inc., 43 F.3d 14 (1st Cir. 1994).{/footnote} but may be admissible for the purpose of establishing the existence of a defect{footnote} [2937] Ross v. Black & Decker, Inc., 977 F.2d 1178 (7th Cir. 1992)(power saw); Burke v. Deere & Co., 6 F.3d 497 (8th Cir. 1993)(combine).

But see Cameron v. Otto Bock Orthopedic Inc., 43 F.3d 14 (1st Cir. 1994)(inadmissible on issue of defect where circumstances not shown).{/footnote} and causation.{footnote}Eiland v. Westinghouse Elec. Corp., 58 F.3d 176 (5th Cir. 1995)(circuit breaker); Ross v. Black & Decker, Inc., 977 F.2d 1178 (7th Cir. 1992)(power saw); Burke v. Deere & Co., 6 F.3d 497 (8th Cir. 1993)(combine).

Contra Wills v. Price, 26 Cal.App.2d 338 (1938).{/footnote} On the other hand, the evidence may be admissible as circumstantial evidence that the conditions causing the subsequent accident existed at the earlier time claimed,{footnote}Whitely v. OKC Corp., 719 F.2d 1051 (10th Cir. 1983)(subsequent propane gas exposion); 81 ALR 685.

But see Robertson v. Union Pacific R. Co., 954 F.2d 1433 (8th Cir. 1992)(subsequent faliures of flashing lights at railroad crossing inadmissible to show failure at time of accident).{/footnote} if the two incidents were reasonably close in time.

2(a)(iii). Same Product, Different Supplier

Evidence of similar accidents involving the same product originating from a supplier other than the defendant is admissible to show defect.{footnote}Davidson Oil Country Supply v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir. 1990).

[West sec. 141]
{/footnote}

2(a)(iv). As Rebuttal or Impeachment

Where the defendant denies the existence of any other accidents, evidence of such accidents may be introduced as impeachment{footnote}Ramos v. Liberty Mutual Ins. Co., 615 F.2d 334, 340 (5th Cir. 1980).{/footnote} or in rebuttal.{footnote} [2942] Polythane Systems, Inc. v. Marina Ventures Internationale, Ltd., 993 F.2d 1201 (5th Cir. 1993), cert. denied 114 S.Ct. 1064, 127 L.Ed.2d 383.{/footnote}

2(a)(v). Other Complaints as Hearsay

To the extent that reports or complaints of other incidents contain statements which are being offered to prove the truth of the matters asserted, those reports or complaints have been held inadmissible hearsay.{footnote} [2943]Uitss v. General Motors Corp., 411 F. Supp. 1380, 1382-83 (E.D. Pa. 1974), aff’d, 513 F.2d 626 (3d Cir. 1975).{/footnote}

2(a)(vi). No Prior Accidents or Injuries

Evidence that there have been no previous incidents such as the one alleged is relevant and admissible to disprove defect,{footnote}Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir. 1988); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir. 1996)(automobile warning light system).{/footnote} causation{footnote} [2945] Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1 (1st Cir. 1994); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir. 1996)(automobile warning light system).{/footnote} and dangerousness,{footnote}Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1 (1st Cir. 1994); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir. 1996)(automobile warning light system).

Parson v. City of Chicago, 117 Ill. App. 3d 383, 453 N.E.2d 770 (1st Dist. 1983). Rathbun v. Humphrey Co., 113 N.E.2d 877 (Ohio 1953). See also McCormick Sec. 167 (quote)

Contra Blackwell v. J. J. Newberry Co., 156 S.W.2d 14 (Mo. 1941); 31 ALR 2d 190 [check].
{/footnote} as well as to prove lack of notice.{footnote}Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir. 1988).{/footnote} The evidence must relate to a substantially identical product used under circumstances similar to those of the product at issue.{footnote} [2948] Klonowski v. International Armament Corp., 17 F.3d 992 (7th Cir. 1994); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir. 1996)(automobile warning light system).{/footnote}

If the evidence is that no claims or complaints of other accidents or injuries were made, it is viewed as hearsay by many courts for any purpose other than to show lack of notice.{footnote} [2949] Check Menard v. Cashman, 55 A.2d 156 (N.H. 1947). Check Rathbun v. Humphrey, 113 N.E.2d 877 (Ohio 1953). {/footnote} See HEARSAY–Inferring Matters Not Asserted; SILENCE.

2(b). Medical Malpractice

In a suit alleging surgical malpractice, evidence of other operations by the same surgeon was held properly excluded on the grounds of prejudice.{footnote}Buford v. Howe, 10 F.3d 1184 (5th Cir. 1994).{/footnote}

2(c). Other Negligence Cases

2(c)(i). No Other Claims from Same Incident

The fact that no other persons involved in an alleged accidenct made any claims has been held relevant to prove that no accident occurred.{footnote}DeMarines v. KLM Royal Dutch Airline, 580 F.2d 1193 (3d Cir. 1978)(allegd airline accident).{/footnote}

2(c)(ii). Defendant Not Negligent on Other Occasions

In a negligence action, evidence is inadmissible to show that a defendant was not negligent on other occasions or was in the habit of conducting itself in a safe and careful manner.{footnote}Cherry v. D.S. Nash Construction Co., 475 S.E.2d 794, 796 (Va. 1996)
{/footnote}

2(d). Fraud

Other dishonest or fraudulent acts are often held admissible to establish a party’s motive, intent, knowledge, plan, and absence of accident or mistake.{footnote} [2953] F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 45 F.3d 969 (5th Cir. 1995)(other dishonest loans made by bank officer at another bank); Turley v. State Farm Mut. Auto Ins. Co., 944 F.2d 669 (10th Cir. 1991)(other insurance scams admissible in action by insured to recover under automobile theft policy).{/footnote} To be admissible, such acts should be similar in nature and proximate in time to the acts alleged in the suit.{footnote} [2954] In re Cornner, 191 B.R. 214 (Bankr. N.D. Ala. 1995).{/footnote} Such acts are not admissible to prove the character of someone or their propensity to act in accordance therewith.{footnote}J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259 (3d Cir. 1994)(in franchisee’s suit for misrepresentations against franchisors, testimony by other franchisees regarding similar misrepresentations made to them held improperly admitted); Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754 (8th Cir. 1995)(in insuror’s declaratory judgment action under policy, evidence of falsified airman’s logs inadmissible to prove by implication that employer falsified payroll records.){/footnote}

3. Criminal Cases Generally

3(a). Generally

See also CONVICTIONS; CHILD ABUSE–Defendant’s Prior Acts of Sexual Assault; SEXUAL ASSAULTS–Defendant’s Prior Sexual Assaults.

Other bad acts committed by the defendant ordinarily may not be introduced to show predisposition to commit the crime charged.{footnote} [2956]United States v. Gometz, 879 F.2d 256 (7th Cir. 1989).{/footnote} See CHARACTER–Criminal Defendants. Evidence of predisposition is only admissible where the defense of entrapment is raised. See ENTRAPMENT DEFENSE. [Check drug prosecutions]{footnote}Check United States v. Brown, 453 F.2d 101 (8th Cir. 1971); United States v. Demetre, 464 F.2d 1105 (8th Cir. 1972).{/footnote}

To be admissible against the defendant in a criminal case, "other bad act" evidence must be relevant to some material issue other than character,{footnote} [2958]Huddleston v. United States, 485 U.S. 681, 686 (1988).{/footnote} and its probative value must not be substantially outweighed by undue prejudice.{footnote}Huddleston v. United States, 485 U.S. 681, 688 (1988); United States v. Williams, 900 F.2d 823 (5th Cir. 1990); Annot., 64 ALR Fed. 648.
State v. Dudley, 912 S.W.2d 525, 529 (Mo. App. 1995) (evidence of defendant’s prior drug conviction held abuse of discretion);
{/footnote} See also PREJUDICE.
Some courts require the prosecutor to obtain a favorable ruling from the trial court prior to attempting to admit evidence under this rule.{footnote}Stull v. People, 140 Colo. 278, 283, 344 P.2d 455, 458 (1959).{/footnote}
The court is not required to make an explicit finding for the record as to the balancing of probative value against prejudice where none is requested by the defendant.{footnote}United States v. Johnson, 872 F.2d 612 (5th Cir. 1989).{/footnote} Other acts are not rendered inadmissible under this rule by the fact that they occurred after the crime charged.{footnote}United States v. Whaley, 786 F.2d 1229 (4th Cir. 1986).{/footnote}

3(b). Proper Purposes

Other act evidence may be offered for any relevant purpose, but not to show the defendant’s bad character.{footnote} [2963]FRE 404(b); United States v. Wright, 489 F.2d 1181 (D.C. Cir. 1973) (error to comment on defendant’s courtroom behavior; equivalent to character evidence).
CHECK Cal. Evid. Code Ann. § 1101(b).{/footnote} Discussed below are some common purposes for which this type of evidence is frequently offered, but others are certainly possible.{footnote}See, e.g., United States v. Penson, 896 F.2d 1087 (7th Cir. 1990)(prior drug dealings admissible to show why defendant ws trusted by co-conspirators).{/footnote} Before allowing evidence of other acts under this rule, the court should identify the purpose for which it is being allowed.{footnote}United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990); United States v. Mothershed, 859 F.2d 585 (8th Cir. 1988); United States v. RIvera, 837 F.2d 906 (10th CIr. 1988).{/footnote} A limiting instruction should be given to the jury as to the purpose for which the evidence may be considered.{footnote}United States v. Levy, 731 F.2d 997 (2d Cir. 1984); United States v. Danzey, 594 F.2d 905 (2d Cir. 1979); United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990); United States v. Calvert, 523 F.2d 895 (8th Cir. 1975); United States v. Cuch, 842 F.2d 1173 (10th Cir. 1988)(but any error in failure to give instruction waived by failure of defendant to request it).

But see United States v. Santagata, 924 F.2d 391 (1st Cir. 1991)(no limiting instruction required where evidence independently admissible as proof of the offense).{/footnote}

3(b)(i). Res Gestae

Res gestae evidence of other acts is not really within the scope of Federal Rule 404(b).{footnote}Check Harper v. United States, 239 F.2d 945, 946 (App. D.C. 1956). Check United States v. Price, 877 F.2d 334 (5th Cir. 1989); United States v. Monzon, 869 F.2d 338 (7th Cir. 1989); Check United States v. Bettelyoun, 892 F.2d 744 (8th Cir. 1989); Check United States v. De Luna, 763 F.2d 897 (8th Cir. 1985); United States v. Soliman, 813 F.2d 277 (9th Cir. 1987).{/footnote} Where evidence of other unindicted criminal behavior is "inextricable intertwined" with evidence of the offense charged, the evidence will be admitted unless its probative value is substantially outweighed by the danger of unfair prejudice.{footnote}United States v. Tafoya, 757 F.2d 1522, 1526-27 (5th Cir.)(evidence that defendant engaged in assassination attempts admissible in prosecution for failure to declare income), cert. denied, 474 U.S. 921 (1985).{/footnote}

3(b)(ii). Knowledge, Motive or Intent

Other acts are admissible to show a defendant’s state of mind at the time of the offense charged, such as knowledge,{footnote} [2969]United States v. Payne, 467 F.2d 828 (5th Cir. 1972)(possession of stolen goods); United States v. Miranda, 835 F.2d 830 (11th Cir. 1988) (prior state citation for same offense admissible with limiting instruction to show knowledge).
But see State v. Dudley, 912 S.W.2d 525, 529 (Mo. App. 1995) (in prosecution for possession of codeine, evidence of defendant’s prior conviction for possession of codeine improperly admitted on issue of defendant’s knowledge of the nature of pills he was carrying because evidence highly prejudicial and minimally probative). and inflammatory sufficient to preserve claim that probative value outweighed by prejudice).{/footnote} motive{footnote} [2970]United States v. Murphy, 374 F.2d 651 (2d Cir. 1967); United States v. Samuel, 431 F.2d 610 (4th Cir. 1970); United States v. Cook, 592 F.2d 877 (5th Cir. 1979); Sargent v. Armontrout, 841 F.2d 220 (8th Cir. 1988) (evidence that weapons seized at defendant’s home were stolen from gun shop two months earlier admissible to show defendant’s motive in resisting execution of search warrant). {/footnote}, intent,{footnote}Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967)(prior crimes); United States v. Mateos-Sanchez, 864 F.2d 232 (1st Cir. 1988)(prior drug use in drug prosecution); United States v. Ebner, 782 F.2d 1120 (2d Cir. 1986)(prior instances of tax evasion admission in prosecution for tax evasion); United States v. Velasquez, 847 F.2d 140 (4th Cir. 1988)(prior escapes admissible in escape prosecution); United States v. Williams, 900 F.2d 823 (5th Cir. 1990)(prior mailings similar to those charged); United States v. Justice, 431 F.2d 30 (5th Cir. 1970); Check United States v. Jerkins, 871 F.2d 598 (6th Cir. 1989) (tax evasion prosecution; failure to file in prior years); United States v. Goodapple, 958 F.2d 1402 (7th Cir. 1992)(prior drug transactions); United States v. Hardrich, 707 F.2d 992 (8th Cir. 1983)(prior forgery conviction admissible in forgery prosecution); United States v. Luttrell, 612 F.2d 396 (8th Cir. 1980); United States v. Hadley, 918 F.2d 848 (9th Cir. 1990)(prior sexual offenses); United States v. Winters, 729 F.2d 602 (9th Cir. 1984)(Mann Act prosecution); United States v. Hogue, 827 F.2d 660 (10th Cir. 1987)(prior acts of violence against victim); United States v. Scott, 701 F.2d 1340 (11th Cir. 1983)(prior false statements in loan applications); Boyer v. United States, 76 App. D.C. 397, 132 F.2d 12 (1942).

CHECK United States v. Bruno, 809 F.2d 1097 (5th Cir. 1987) (prior bribery admissible in bribery case). {/footnote} and lack of mistake or accident.{footnote}United States v. Mateos-Sanchez, 864 F.2d 232 (1st Cir. 1988)(prior drug use in drug prosecution); United States v. Binkley, 903 F.2d 1130 (7th Cir. 1990)(prior drug use in drug prosecution).{/footnote} Such evidence is only admissible where the defendant’s state of mind is relevant to an element of the crime charged.{footnote}United States v. Brown, 873 F.2d 1265 (9th Cir. 1985) (motive); State v. Atkinson, 293 S.W.2d 941, 943 (Mo.1956).{/footnote} See also CHILD ABUSE–Defendant’s Prior Acts of Sexual Assault; SEXUAL ASSAULTS–Defendant’s Prior Sexual Assaults. Prior offenses offered to show intent must be similar to crime charged{footnote} [2974]But see United States v. Sarault, 840 F.2d 1479 (9th Cir. 1988) (uncharged fraud scheme need not be identical to the charged scheme to be admitted, so long as it is similar).{/footnote} and not to remote in time.{footnote}United States v. Justice, 431 F.2d 30 (5th Cir. 1970); Boyer v. United States, 76 App. D.C. 397, 132 F.2d 12 (1942).{/footnote}

With general intent crimes, other act evidence is generally not admissible to prove the defendant’s intent,{footnote}United States v. Shackleford, 738 F.2d 776 (7th Cir. 1984).{/footnote} unless the defense raises or will be raising lack of intent as a defense.{footnote}United States v. Hooton, 662 F.2d 628 (9th Cir. 1981).{/footnote} It has also been held that evidence of other offenses is not admissible to show intent where the proven facts are such that defendant can be presumed to know the nature and character of his act.{footnote}State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 923 (Mo. 1947); State v. Dudley, 912 S.W.2d 525, 529 (Mo. App. 1995) (in prosecution for possession of codeine, evidence of defendant’s prior conviction for possession of codeine inadmissible on issue of intent given that defendant was hiding in attic with marijuana, cigarette papers and codeine pills in plastic bag).{/footnote}

Defendants may introduce evidence of other acts they have committed which negate the prosecution’s claim of fraudulent intent[??].{footnote}Check 90 ALR2d 903.{/footnote}

3(b)(ii)(A). Must the Issue Be In Dispute?

It has been held that evidence of other bad acts may only be offered to show a defendant’s intent where the issue of intent is disputed.{footnote} [2980]United States v. Manafzadeh, 592 F.2d 81, 87 (2d Cir. 1979).
State v. Dudley, 912 S.W.2d 525, 529 (Mo. App. 1995) (in prosecution for possession of codeine, evidence of defendant’s prior conviction for possession of codeine more prejudicial than probative on issue of defendant’s knowledge of the nature of pills he was carrying where there was no real controversy on this issue).
CHECK United States v. Benedetto, 571 F.2d 1246, 1248 (excluding evidence where intent not an issue).{/footnote}
It has been stated that courts are more willing to allow evidence of prior offenses to show a defendant’s state of mind in the rebuttal stage of the prosecution’s case, than in its case-in-chief, before any real dispute has surfaced over state of mind.{footnote} [2981]United States v. Colon, 880 F.2d 650 (2nd. Cir. 1989); United States v. Benedetto, 571 F.2d 1246 (2nd Cir. 1978); United States v. Ross, 321 F.2d 61 (2d Cir. 1963); United States v. Adderly, 529 F.2d 1178, 1182 (5th Cir. 1976); United States v. Jones, 476 F.2d 533, 537 (D.C. Cir. 1973).{/footnote}

3(b)(iii). Pattern or Modus Operandi

"Other bad acts" are admissible to show a pattern{footnote}United States v. Danzey, 594 F.2d 905 (2d Cir. 1979); United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970).{/footnote} or modus operandi,{footnote}United States v. Williams, 900 F.2d 823 (5th Cir. 1990)(prior mailings of a similar nature to those charged); United States v. Marashi, 913 F.2d 724 (9th Cir. 1990)(fraudulent businesss records used to defraud government); United States v. Winters, 729 F.2d 602 (9th Cir. 1984).

People v. Stevenson, 204 Ill. App. 3d 342, 562 N.E.2d 330 (1st Dist. 1991)(prior attack on similar victim with baseball bat).{/footnote} and thereby establish the perpetrator’s identity as being the defendant.{footnote}Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); Check United States v. Childs, 194 App. D.C. 250, 598 F.2d 169 (1979).{/footnote} Where the modus operandi is a common one, the evidence will not be deemed helpful to the jury.{footnote}United States v. Ezzell, 644 F.2d 1304 (9th Cir. 1981).{/footnote}

When a defendant is charged with a violent crime and has had a relationship with the victim, prior assaults on the same victim have been held admissible to establish identity, without any showing of a "distinctive modus operandi".{footnote}People v. Zack, 229 Cal. Rptr. 317, 319-20 (Ct. App. 1986).
{/footnote}

3(b)(iv). Plan or Scheme

Evidence of plan or scheme may be introduced to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.{footnote}United States v. Levy, 865 F.2d 551 (3d Cir. 1985)(use of false identification); United States v. Liefer, 778 F.2d 1236 (7th Cir. 1985); United States v. Arnold, 773 F.2d 823 (7th Cir. 1985)(obstruction of justice); Llach v. United States, 739 F.2d 1322, 1327 (8th Cir. 1984); McCormick, Sec. 157 (1954); 2 Weinstein & 404[16] at 404-118 and n. 2 (Supp. 1985).{/footnote}

3(b)(v). Corroboration

Evidence of a defendant’s prior crimes has been held admissible by some courts to corroborate testimony.{footnote}United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987), cert. denied, 484 U.S. 1069 (1988)(armed robbery).{/footnote}

3(c). Burden of Proof

In federal courts, other act evidence may be admitted if the conditional relevancy test of FRE 104(b) is satisfied: the jury could reasonably find that the act occurred and that the defendant committed it.{footnote}Huddleston v. United States, 485 U.S. 681, 685 (1988); United States v. Lewis, 780 F.2d 1140, 1142 (4th Cir. 1986); United States v. Cordell, 912 F.2d 769, 775 (5th Cir. 1990); United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir. 1989), cert. denied, 493 U.S. 1084 (1990); United States v. Penson, 896 F.2d 1087, 1091-92 (7th Cir. 1990); United States v. Schleicher, 862 F.2d 1320 (8th Cir. 1988); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir. 1990); United States v. Martinez, 890 F.2d 1088, 1093-94 (10th Cir. 1989), cert. denied, 494 U.S. 1059 (1990); United States v. Nahoom, 791 F.2d 841 (11th Cir. 1986).
Spicer v. State, 799 S.W.2d 562, 563 (Ark. App. 1990); People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990)(en banc); Holmes v. State, 511 N.E.2d 1060, 1061 (Ind. 1987); Cook v. State, 578 A.2d 283, 287-88 (Md. Ct. Spec. App.), cert. denied, 583 A.2d 276 (Md. Ct. App. 1991); People v. Ortiz, 142 A.D.2d 248 (N.Y. App. Div. 1988).
{/footnote}
In some states, the court must make the preliminary findings of fact as tot the admissibility of this evidence by weighing the preponderance of the evidence.{footnote}State v. Garner, 806 P.2d 366, 370 (Colo. 1991).{/footnote}

3(d). Proximity in Time

Other acts must be reasonably close in time to alleged offense to be admissible.{footnote}United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Burk, 912 F.2d 225 (8th Cir. 1990); United States v. Smith, 735 F.2d 1196 (9th Cir. 1984).

But see United States v. Ross, 886 F.2d 264 (9th Cir. 1989)(other acts thirteen years before offense admissible).{/footnote} See also CONVICTIONS.

3(e). Proof of Misconduct

Such evidence is admissible only where the jury can reasonably conclude that the act occurred and that it was committed by the defendant.{footnote}Dowling v. United States, 493 U.S. ___, 107 L.Ed.2d 708, 110 S.Ct. ____ (1990); Huddleston v. United States, 485 U.S. 681, 689, 99 L.Ed.2d 771, 108 S.Ct. 1496 (1988).{/footnote}

3(f). Effect of Acquittal

Other act evidence has been held admissible even though the defendant was acquitted in a criminal prosecution for the act.{footnote}Dowling v. United States, 493 U.S. ___, 107 L.Ed.2d 708, 110 S.Ct. ____ (1990).

Contra State v. Scott, Doc. No. 330PA90 (N.C. 1992).{/footnote}

3(g). Objections

Objections to evidence of other acts must be specific and must be on the same grounds which are raised on appeal.{footnote}United States v. Field, 875 F.2d 130 (7th Cir. 1989).{/footnote}

3(h). Other Acts by Third Parties

The defense in a criminal case may offer "other bad act" evidence against a third party. In such instances, there is no need to weight any danger of prejudice.{footnote}United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984).{/footnote} The prosecution may also offer evidence of other acts by its own witnesses which corroborate their testimony.{footnote}United States v. Porter, 881 F.2d 878 (10th Cir. 1989).{/footnote} However it is improper for the government to introduce evidence of bad acts by a defendant’s friends or relatives simply to imply guilt by association.{footnote}United States v. Singleterry, 646 F.2d 1014 (5th Cir. 1981).{/footnote}

3(i). Notice

FRE 404 was amended in 1991 to provide that the prosecution must give prior notice to the accused of its intent to introduce evidence of other acts under FRE 404(b).{footnote}{footnote}{/footnote} [2998] [U]pon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such [FRE 404(b)] evidence it intends to introduce at trial.
FRE 404(b).{/footnote}

4. Particular Criminal Cases

The table at the end of this article collects cases ruling on the admissibility of other acts in various types of criminal cases. The endnotes appear after the table.

5. Impeaching a Witness with the Witness’ Own Conduct

Witnesses may generally be impeached by two types of “other act” evidence: (1) past conduct involving dishonesty; {footnote}United States v. Leake, 642 F.2d 715 (4th Cir. 1981); United States v. Fulk, 816 F.2d 1202 (7th Cir. 1987)(defendant cross-examined as to license suspension due to deceptive practices).
State v. Martin, 513 A.2d 116 (Conn. 1986).

Check United States v. Park, 525 F.2d 1279 (5th Cir. 1976)(misconduct not resulting in conviction inadmissible)[not involving dishonesty?].{/footnote} and (2) certain types of crimes, which may or may not have involved dishonesty. Evidence of crimes committed by the witness must be in the form of convictions.{footnote}People v. Pecoraro, 677 N.E.2d 875 (Ill. 1997) (evidence that witness solicited a murder could not be inquired into because witness not arrested or charged, much less convicted){/footnote} See CONVICTIONS. Investigations, arrests and the pendency of criminal charges may not be inquired into for this purpose due to their prejudicial nature. See ARRESTS; AUDITS; INVESTIGATIONS; PROSECUTION. See also BIAS.

FRE 608(b) and its state counterparts provide:

A criminal defendant who testifies may be impeached under this same rule.{footnote}United States v. Sperling, 726 F.2d 69, 75 (2d Cir.), cert. denied, 467 U.S. 1243 (1984) (proper to cross-examine defendant regarding false credit card applications); United States v. Clemente, 640 F.2d 1069 (2d Cir.), cert. denied, 454 U.S. 820 (1981) (cross-examination about filing of false loan applications permitted, but admission of applications into evidence erroneous); United States v. Sullivan, 803 F.2d 87, 90-91 (3d Cir. 1986), cert. denied, 479 U.S. 1036 (1987) (trial court properly permitted cross-examination regarding fraudulent income tax forms and financial disclosure forms); Hug v. United States, 329 F.2d 475, 484 (6th Cir.), cert. denied, 379 U.S. 818 (1964); Kitchen v. United States, 221 F.2d 832, 834 (D.C. Cir. 1955), cert. denied, 357 U.S. 928 (1958) {/footnote}
Whether to allow this type of cross-examination is within the discretion of the trial court.{footnote}People v. Pratt, 759 P.2d 676, 681 (Colo. 1988).{/footnote} The probative value of such evidence is weighed against the danger of unfair prejudice{footnote}FRE 608(b).{/footnote} and waste of time.{footnote}United States v. Fortes, 619 F.2d 108 (1st Cir. 1980).{/footnote} In some states, this type of evidence is admitted without any special balancing test, while still other states do not allow it at all.{footnote}Cal. § 787.{/footnote} Even those jurisdictions which do allow the evidence are cautious about admitting it against a criminal defendant who testifies, since there is a danger that it will be used as general character evidence. See CHARACTER EVIDENCE.

5(a). Conduct Involving Dishonesty

To qualify as a proper grounds for impeachment, the prior conduct must have involved actual dishonesty, not merely bad conduct.{footnote}United States v. Dennis, 625 F.2d 782, 798 (8th Cir. 1980) (arrest on tax charges inadmissible; noting that charges did not bear on truthfulness); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978)(discharge from Marine Corps not properly brought out where basis for discharge did not involve dishonesty); Shafer v. American Employers’ Ins. Co., 535 F. Supp. 1067 (W.D. Ark. 1982) (possible discrepancy between witness’ testimony and tax returns not probative of truthfulness or untruthfulness).
People v. Pratt, 759 P.2d 676, 681 (Colo. 1988); People v. Saldana, 670 P.2d 14, 15 (Colo. App. 1983) (trial court properly prevented cross-examination of prosecution investigator as to past marijuana use).
Contra State v. Shane, 285 S.E.2d 813, 817 (N.C. 1982) (in dictum, stating that defendant could properly be impeached with incident of participating in an act of fellatio with a prostitute, which is both immoral and a crime against nature, even if consensual; form of impeachment used by prosecutor improper)
{/footnote} The fact that a witness has knowingly made false statements in the past may be brought out as impeachment,{footnote}United States v. Holt, 817 F.2d 1264, 1273 (7th Cir. 1987) (proper to cross-examine witness, defendant’s wife, about her having used checks that she later reported as stolen).{/footnote} although extrinsic evidence is not admissible.{footnote}Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975).{/footnote} The fact that a witness has been disbarred is admissible as impeachment.{footnote}United States v. Weichert, 783 F.2d 23 (2d Cir. 1986).{/footnote}

Parties may not impeach a witness by questioning him or her about having been arrested or prosecuted on criminal charges, if the arrest or prosecution did not result in a conviction. Similarly, a witness may not be impeached with evidence that they have been investigated or audited,{footnote}People v. Pratt, 759 P.2d 676, 681 (Colo. 1988) (audit of Medicaide irregularities by Social Services agency not proper subject for cross-examination of defense witness).{/footnote} or that accusations have been made against them.{footnote} State v. Shane, 285 S.E.2d 813, 817 (N.C. 1982).{/footnote} Cf. CHARACTER § 7. Impeachment of Character Witnesses; CONVICTIONS. See also ARRESTS; AUDITS; INVESTIGATION; PROSECUTION.

5(b). Extrinsic Evidence Generally Inadmissible

In jurisdictions allowing this form of impeachment, extrinsic evidence of the past conduct is generally inadmissible.{footnote}FRE 608(b); United States v. Clemente, 640 F.2d 1069, 1083 (2d Cir.), cert. denied, 454 U.S. 820 (1981) (cross-examination of defendant about filing of false loan applications permitted, but admission of applications into evidence erroneous; held harmless error); United States v. Simmons, 444 F. Supp. 500 (E.D. Pa. 1978).
People v. Taylor, 545 P.2d 703, 706 (Colo. 1976); State v. Martin, 513 A.2d 116 (Conn. 1986); State v. McKelvy, 574 P.2d 603 (N.M. 1978).

But see United States v. Rodriguez, 917 F.2d 1286 (11th Cir. 1990)(extrinsic evience admissible where otherwise relevant to an issue in the case).{/footnote} In effect, one is bound by whatever answer the witness provides.{footnote}United States v. Whiting, 311 F.2d 191 (4th Cir. 1962).{/footnote} The exception is where a witness opens the door by testifying on direct examination as to the prior incident or volunteering a denial on cross-examination.{footnote}United States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978).{/footnote}

5(c). Privilege Against Self-incrimination

A witness cross-examined about past acts of posssibly criminal conduct for impeachment purposes may assert the privilege against self-incrimination to prevent inquiry into the subject.{footnote}FRE 608 (rejecting holding of People v. Sorge, 93 N.E.2d 637 (N.Y. 1950); Alford v. United States, 282 U.S. 687 (1931).{/footnote} See SELF-INCRIMINATION.

5(d). “Opening the Door”

Otherwise inadmissible prior crimes may be used on cross-examination where the witness, during direct examination, leaves a false impression as to the extent of his prior arrests,{footnote}Page v. State, 486 S.W.2d 300 (Tex.Cr.App. 1972) (denial of any prior arrests for violent crimes, cross-examination as to arrest for concealed weapon, robbery, burglary and theft was therefore proper).{/footnote} criminal charges,{footnote}But see Prescott v. State, 744 S.W.2d 128, 132-33 (Tex. Crim. App. 1988) (defendant’s statement on direct examination, “this is my first time of going through this..” did not opend door to prior criminal charges because too ambiguous).{/footnote} convictions,{footnote}Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App. 1972); Stephens v. State, 417 S.W.2d 286, 288 (Tex.Cr.App. 1967); Whittle v. State, 147 Tex. Cr. R. 227, 179 S.W.2d 569, 573 (Tex.Cr.App. 1944).{/footnote} or other criminal involvement.

5(e). Rehabilitation

Where a witness has been impeached with evidence of prior misconduct reflecting dishonesty (other than a criminal conviction), the witness will be allowed an opportunity to explain the conduct, but no extrinsic evidence may be introduced as to the conduct in order to explain it. Cf. CONVICTIONS.

6. Impeaching a Character Witness with Offering Party’s Misconduct

A witness who testifies as to a party’s good character, either giving a personal opinion or stating the party’s reputation, may generally be impeached with questions as to specific acts of misconduct by that party.{footnote}See generally FRE 405(a) (“On cross-examination [of character witnesses], inquiry is allowable into relevant specific instances of conduct.”); FRE 608(b):

Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness…(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Michelson v. United States, 335 U.S. 469, 479 (1948).
Rank v. State, 883 S.W.2d 843, 846 (Ark. 1994).
CHECK Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975); Jiminez v. State, 545 P.2d 1281 (Okl.Cr.App.1976); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975) {/footnote} The legitimate purpose of such questions is to show:

(1) if the witness is unaware of the specific act, that the witness is not well-acquianted with the party, or the party’s reputation;{footnote}Michelson v. United States, 335 U.S. 469, 479 (1948).
People v. Wagner, 532 P.2d 105 (Cal. 1975); People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 561 (1981).{/footnote}
(2) if the witness was already aware of the specific act, that the witness’ standards for good character or reputation are suspect.

In practice, this rule is commonly abused in order to inject otherwise inadmissible character evidence into the case:

[T]his method of inquiry or cross-examination is frequently resorted to by counsel for the very purpose of injuring by indirection a character which they are forbidden directly to attack in that way . . . The value of the inquiry for testing purposes is often so small and the opportunities of its abuse by underhand ways are so great that the practice may amount to little more than a mere subterfuge. . . . {footnote}Michelson, 335 U.S. at 474 n.4, quoting J. Wigmore, Evidence § 988 (3d ed. 1940).
See also People v. Eli, 424 P.2d 356 (Cal. 1967); Rogers v. United States, 534 A.2d 928, 933-34 (D.C. 1988) (Newman, J., dissenting); 4 Wigmore On Evidence, § 1117, p. 252.{/footnote}
[The prosecution in a criminal case may not ask questions which are obviously for the purpose of showing the commission of a specific crime or crimes for which the defendant is not on trial.{footnote}Commonwelath v. Jenkins, 198 A.2d 497, 498-99 (Pa. 1964) (in murder trial, prosecution questions to witness as to whether she had heard defendant was arrested as a juvenile for burglary, mischief and larceny held improper and reversible error).{/footnote} ARN”T THEY ALL? SHEP THIS CASE]

Some courts have held that before allowing such cross-examination, the court must satisf itself that teh probative value of the impeachment outweighes the prejudice.{footnote}State v. Sims, 746 S.W.2d 191, 194 (Tenn. 1988).{/footnote}

7(a). Misconduct Which May Be Inquired Into

Some courts have held that the misconduct must be relevant to a specific trait involved in the offense for which the accused is on trial.{footnote}But see State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986) (court must conduct preliminary inquiry to determine relevance to offense charged); Miller v. State, 418 P.2d 220 (Okla. 1966) (must be relevant to specific trait involved in the offense for which the accused was on trial)
{/footnote} Others have held that the misconduct is admissible where it is relevant to the character trait asserted by the witness:{footnote}Michelson v. United States, 335 U.S. 469, 483 (1948) (questions regarding defendant’s arrests for receiving stolen goods proper to impeach assertion that he was known as honest and a law abiding citizen); United States v. Curtis, 644 F.2d 263, 268, 269 (3d Cir. 1981) ("Relevant specific instances of conduct are only instances going to the accuracy of the character witnesses’ testimony."); United States v. Wooden, 137 U.S. App. D.C. 1, 420 F.2d 251, 252-53 (D.C. Cir. 1969) (quoting Michelson, 335 U.S. at 483-84).
People v. Pratt, 759 P.2d 676, 683 (Colo. 1988) (Medicaid irregularities not proper subject for cross-examination of defense character witness where Medicaid audit shown to be common in industry; “fraudulent activity” not shown); State v. McGraw, 528 A.2d 821 (Conn. 1987); State v. Hinton, 479 P.2d 910, 915 (Kan. 1971).
See generally McCormick on Evidence § 191, at 568-69 (3d ed. 1984); 3 J. Weinstein & M. Berger, Weinstein’s Evidence & 608[06], at 608-55 (1987).
CHECK But see United States v. Diaz, 961 F.2d 1417 (9th Cir. 1992) (improper to to question defendant’s mother as to son’s propeensity to engage in drug‑dealing). {/footnote}

It is not only by comparison with the crime on trial but by comparison with the reputation asserted that a court may judge whether the prior arrest should be made subject of inquiry.{footnote}Michelson, 335 U.S. at 483. {/footnote}
Thus, where the defense improperly introduces character evidence as to a trait which is not relevant to the offense charged, it opens the door for the prosecution to cross-examine the witness as to conducr relevant to the character trait asserted by the witness, but not relevant to the offense charged.{footnote}State v. McGraw, 528 A.2d 821, 825 (Conn. 1987).{/footnote}

The misconduct need not have resulted in a conviction. See also ARRESTS; CONVICTIONS.

Misconduct by a party when he was a juvenile has been held admissible, where there is no reference to any adjucation.{footnote}Devore v. United States, 530 A.2d 1173, 1175 (D.C. 1987).{/footnote} Misconduct which is remote in time is less likely to be admitted, however.{footnote}Miller v. State, 418 P.2d 220 (Okla. 1966) (court must decide issue of remoteness prior to cross-examination).{/footnote}

The prosecution may not cross-examine a defendant’s character witness by asking the witness whether his or her opinion of the defendant would change if the defendant were guilty of the charges against him.{footnote}United States v. Long, 917 F.2d 691 (2d Cir. 1990); United States v. Oshatz, 912 F.2d 534 (2d Cir. 1990); United States v. McGuire, 744 F.2d 1197, 1204 (6th Cir. 1984); United States v. Barta, 888 F.2d 1220 (8th Cir. 1989); United States v. Krapp, 815 F.2d 1183 (8th Cir. 1987); United States v. Velasquez, 980 F.2d 1275 (9th Cir. 1992); United States v. Page, 808 F.2d 723 (10th Cir. 1987).{/footnote}
Conduct At Issue in Trial. There is a division of authority as to whether a witness testifying as to the good character of a criminal defendant may be asked if his or her opinion would be affected by proof that the defendant had committed the criminal conduct which is at issue in the trial.{footnote}Allowing question: United States v. Senak, 527 F.2d 129, 145-46 (7th Cir. 1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976); United States v. Oshatz, 704 F. Supp. 511, 515 (S.D.N.Y. 1989); Lopez v. Smith, 515 F. Supp. 753, 756 (S.D.N.Y. 1981).

Contra United States v. Morgan, 554 F.2d 31 (2d Cir.) (dicta), cert. denied 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977); United States v. Palmere, 578 F.2d 105 (5th Cir. 1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1978); United States v. McGuire, 744 F.2d 1197 (6th Cir. 1984)(dicta), cert. denied, 471 U.S. 1004, 105 S.Ct. 1866, 85 L.Ed.2d 159 (1985); United States v. Williams, 738 F.2d 172 (7th Cir.); United States v. Page, 808 F.2d 723 (10th Cir.), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987); United States v. James, 728 F.2d 465 (10th Cir. 1984), cert. denied, 469 U.S. 826, 105 S.Ct. 106, 83 L.Ed.2d 50 (1984).{/footnote}

Where a witness has testified to the character of the defendant corporate officer as an individual, it has been held improper to cross-examine the witness as to alleged misconduct by others in the defendant’s corporation.{footnote}People v. Pratt, 759 P.2d 676, 683 (Colo. 1988) (Medicaid irregularities for which another corporate officer was allegedly responsible not proper subject for cross-examination of defense character witness).{/footnote}

7(b). Form of Question

7(b)(1). Reputation Witnesses

Some courts hold that witnesses who testify as to a subject’s good reputation in the community may only be questioned as to whether they ever heard persons in the subject’s community attribute particular offenses to the subject.{footnote}State v. Williams, 545 So. 2d 1144 (La. App. 1989) (prosecutor used proper “Have you heard…?” form); Commonwelath v. Jenkins, 198 A.2d 497, 498 (Pa. 1964) (prosecution question to witness as to whether she had heard defendant was arrested as a juvenile held impermissibly broad and reversible error; relevant issue was what she had heard among those in the defendant’s neighborhood).
See also State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986) (court must conduct preliminary inquiry to ensure prosecutor uses proper “Have you heard…?” form); Miller v. State, 418 P.2d 220 (Okla. 1966) (same); State v. Sims, 746 S.W.2d 191, 198 (Tenn. 1988) (in dictum, stating that use of “Have you heard..?” form is “preferred” approach).
CHECK; U.S. v Bright, 588 F.2d 504 (5th Cir. 1979); United States v. Tempesta, 387 F.2d 931 (8th Cir. 1978); 47 A.L.R.2d 1258; State v. Styles, 93 Wash.2d 173, 606 P.2d 1233 (1980).
{/footnote} This is allowed for the purpose of testing the reliability of the witness’s testimony by showing that he or she is not thoroughly familiar with the subject’s reputation.{footnote}United States v. Lewis, 482 F.2d 632, 638 (D.C. Cir. 1973) (permitting questions concerning knowledge of prior conduct solely to test character witness’s credibility).
Commonwelath v. Jenkins, 198 A.2d 497, 498 (Pa. 1964).{/footnote}

Some courts do not permit this type of impeachment (i.e., "Have you heard …?") where a party is testifying as to his or her own good character. Rebuttal character testimony and ordinary impeachment evidence may still be offered.{footnote}People v. Wagner, 13 Cal. 3d 612 (1975). {/footnote} See CHARACTER

7(b)(2). Opinion Witnesses

A witness who gives an opinion as to a party’s character may be impeached by asking whether he or she knows about the misconduct (i.e., “Did you know that…”).{footnote}Government of the Virgin Islands v. Roldan, 612 F.2d 775 (3d Cir. 1979), cert. denied, 446 U.S. 920 (1980).
State v. McGraw, 528 A.2d 821, 825 (Conn. 1987) (“Were you aware…”?){/footnote} This method has been criticized as suggesting more strongly that the misconduct in fact took place, which is not the proper purpose of the impeachment.{footnote}Saltzburg FRE Manual Rule 405.{/footnote}

7(c). Good Faith and Preliminary Showing Required

A character witness may not be questioned about alleged misconduct engaged in by the party whose character is in issue unless there is a good faith basis for the question.{footnote}Michelson v. United States, 335 U.S. 469, 481 (1948) (counsel may not "tak[e] a random shot at a reputation imprudently exposed or [ask] a groundless question to waft an unwarranted innuendo into the jury box.") (footnote omitted); See also United States v. Canniff, 521 F.2d 565, 573 (2d Cir. 1975) ("adequate basis" required), cert. denied, 423 U.S. 1059 (1976); United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963); United States v. Bright, 588 F.2d 504, 511-12 (5th Cir.), cert. denied, 440 U.S. 972 (1979); United States v. West, 460 F.2d 374, 376 (5th Cir. 1972); United States v. Krapp, 815 F.2d 1183, 1186 (8th Cir.), cert. denied, 484 U.S. 860 (1987); ZaragozaAlmeida v. United States, 427 F.2d 1148, 1149-50 (9th Cir. 1970); United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (cross examination of government’s witness by accused), cert. denied, 456 U.S. 935 (1982); United States v. Curtis, 494 F. Supp. 279, 283 (E.D. Pa. 1980), rev’d on other grounds, 644 F.2d 263 (3rd Cir. 1981).
Ex parte Peagler, 516 So. 2d 1369, 1370 (Ala. 1987); People v. Eli, 424 P.2d 356, 367 (Cal.) (trial judge must "scrupulously prevent cross-examination based upon mere fantasy"), cert. denied, 389 U.S. 888 (1967); People v. Pratt, 759 P.2d 676, 684 (Colo. 1988).
{/footnote} Some courts require the cross-examiner to obtain a favorable ruling on the permissibility of the form and substance of the proposed questioning, furnishing the court with proof of the matter to be inquired into.{footnote}United States v. Curtis, 644 F.2d 263, 268 n. 2 (3d Cir. 1981) ("The matters the witness is to be asked about should first be established to the trial judge’s satisfaction as actual events.") (quoting United States v. Lewis, 157 U.S. App. D.C. 43, 482 F.2d 632, 639 (D.C. Cir. 1973));
People v. Pratt, 759 P.2d 676, 684 (Colo. 1988) State v. Hinton, 479 P.2d 910, 917 (Kan. 1971) (trial court should determine that "there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant"); People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958) (the judge must conduct a jury out hearing as to whether the acts were actually committed, their time and place); Miller v. State, 418 P.2d 220 (Okla. 1966) (prosecutor must furnish proof prior to cross-examination).
See also People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556 (1981) (arrests demonstrated to trial judge by way of rap sheet); 2 Weinstein, & 405[02], at 405-33 (1986) (("If the attorney has the slightest doubt about the propriety of the question he should raise it at sidebar to [**25] prevent introducing unnecessary prejudice into the case. This is particularly important because the proponent of the witness is not generally permitted to bring in extrinsic proof to show that the question is unwarranted and the jury is likely to assume that the court would not have permitted it to be asked unless its predicate were true." (footnote omitted)); McCormick, § 191, at 569-70 ("As a precondition to cross-examination about other wrongs, the prosecutor should reveal, outside the hearing of the jury, what his basis is for believing in the rumors or incidents he proposes to ask about. The court should then determine whether there is a substantial basis for the cross-examination." (footnotes omitted)).{/footnote} Where the question relates to a “rumor” or other assertion about the party, one court has held that the cross-examiner must go one step further, and show that the rumor or assertion is grounded in fact.{footnote}People v. Pratt, 759 P.2d 676, 683-84 (Colo. 1988) (alleged Medicaid irregularities subject of audit by authorities not proper subject for cross-examination of defense character witness).
Contra Hohman v. State, 669 P.2d 1316, 1327 n.10 (Alaska App. 1983); Shimon v. United States, 122 U.S. App. D.C. 152, 352 F.2d 449, 453 (D.C. Cir. 1965).{/footnote}

A court may also require proof that the misconduct was reaonably likely to become public knowledge in the community.{footnote}Miller v. State, 418 P.2d 220 (Okla. 1966) (prosecutor must furnish proof prior to cross-examination).{/footnote}

7(d). Extrinsic Evidence and Specifics of Incident Not Allowed

The questioner must accept whatever answer he receives from the character witness and may not offer extrionsic evidence of the asserted misconduct if the witness denies knowledge of it.{footnote}Baze v. Commonwealth, 1997 Ky. LEXIS 40.
CHECK FRE 405; Cal. § 1002 (inadmissible); N.Y. § 60.40.
{/footnote} The cross-examiner also may not fo into unnecessary detail concerning the incident.{footnote}People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 562 (1981) (prosecutor properly limited question to general type of crimes for which the defendant had been arrested (aggravated assault, resisting arrest, kidnaping, assault with a deadly weapon) and the years in which the arrests occurred); State v. McGraw, 528 A.2d 821, 825 (Conn. 1987) (“risk of prejudice was minimized by preventing the jury from hearing anything other than the bare bones of the [arrest] charges”).{/footnote}

7(e). Limiting Instruction

The trial court must instruct the jury as to the limited purpose for which the cross-examination testimony was permitted.{footnote}Miller v. State, 418 P.2d 220 (Okla. 1966); State v. Sims, 746 S.W.2d 191, 194 (Tenn. 1988).{/footnote}

Bibliography

Wanda Ellen Wakefield, Annotation, Cross-Examination Of Character Witness For Accused With Reference To Particular Acts Or Crimes: Modern State Rules, 13 A.L.R.4th 796 (19__).