Natalia provides Randolph v. Nevada--A man was convicted of murdering his wife and a co-conspirator, partially using evidence of the death of his prior wife (a charge on which he was acquitted). Although it uses Nevada's other acts rule, the analysis is similar.
The video below discusses the case.
Tuesday audio. No class Monday; enjoy the long weekend.
Continue with Conditional Relevancy, which will double back onto 404(b). How do FRE 104(a) and (b) map onto the two questions in the FRE 404(b)(2) analysis as described in Bell?
Move to Habit and Routine Practice. What is habit and how does it differ from character, other acts, and routine practice?
Some final points on Identity under FRE 404(b)(2). The identity arguments for the shooting and barroom fights are not strong, although it was important to see and make the arguments. But identity requires real similarities in the details and manner of the action--something allowing the inference (beyond character) that the same person committed the evidential and charged acts. So this can be used for serial killers who follow a particular MO in the crimes--in choice of victim, location, manner of performing the acts, etc. The act has a "calling card" or "signature" or "fingerprint," linked to that person.
One example might be Ted Kaczynsky, the "Unabomber," who sent homemade bombs through the mail to people at universities, airlines, and other technology-related industries.Another is "Son of Sam," David Berkowitz, who used a .44 caliber handgun to kill women with long, dark waivy hair, usually by finding them in parked cars with their boyfriends.
Or to use pop culture, this scene from Home Alone.
For Tuesday, prep the rest of Other Acts, finishing the list in FRE 404(b)(2) and other uses.When is an other act "inextricably intertwined" and how is that significant for a 404(b) analysis? Work through the problems in this section.
In class we mentioned the use of rap lyrics for showing intent. The Restoring Artistic Protection ("RAP") Act
would add a new rule to the FRE limiting the use of artistic expression, by requiring a
stronger connection between the music and the case at issue. Several states have enacted or considered similar rules. This
attempts to address the objection that the regular use of rap music and
lyrics punishes bad art.
Then move to Conditional Relevance; prep FRE 104(a) and (b) (no need to do the rest of FRE 104) and everything else assigned. What is the difference in standard between (a) and (b)? How do (a) and (b) map onto the two questions in Bell analysis?
Prep all of Character Evidence and Prior Bad Acts, covering 404(a) and 404(b) and all the associated materials. What does it mean for character to be an essential element in FRE 405(b) and how does that square with 404(a)(1)? Is murder or perjury a charge on which character is an essential element? Is defamation a claim for which character is an essential element? Review and understand each of the permissible uses in 404(b)(2), including how the court analyzed them in Bell.
We continue with Character Evidence and Bad Acts; do not prep the entire section. For tomorrow, prep FRE 105, 404(a), and FRE 405; Problems 15-28; and C&S 69-89 (which will be helpful in understanding (a)(2) and 405(b)). Work through the pieces of FRE 404(a). As you go through the problems, fit each into FRE 404(a)(1) and any exception(s) in FRE 404(a)(2); note that each exception has multiple clauses, so make sure you identify the applicable one. What is the connection between FRE 404(a) and FRE 405(a)?
Tuesday audio. You hopefully now have a sense of how the problems will go and how you should prepare. Hopefully everyone will have books by Monday.
We continue with Introduction to Relevancy; prepare the remaining problems in this section and begin reviewing the MacIntrye case file, ready to identify the claims and defenses at issue.
Then move to Character Evidence and Bad Acts; we will cover the first half of this section at the end of Monday and all of Tuesday. For next week, prep FRE 105, 404(a), and FRE 405; Problems 15-28; and C&S 69-89. Consider: What is character evidence and why do we not want it admitted in judicial proceedings? What character judgments do you make in life and why don't we allow similar judgments in judicial proceedings?
I will circulate a seating chart tomorrow; please try to keep the room reasonably balanced. We will spend the first few minutes tomorrow on the Syllabus.
We move to Relevance: Introduction to Relevance, with special attention to FRE 401-403. What are the elements of relevancy and what do those terms mean? What does "more probable than without" mean and what does it not mean? What does FRE 403 require and how does it interact with FRE 401? What is the difference between asking about the "weight" of evidence and about the "admissiblity" (or "relevance") of evidence? Become familiar with Mitchell and prep Questions #3-6 (that is as far as we will get).
