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Why Can’t We Use Official’s Prior Bad Acts Against Them Under R.E. 404(b)? | Legalbears Blog Forum

Why Can’t We Use Official’s Prior Bad Acts Against Them Under R.E. 404(b)?

Posted on: October 22, 2012 by: admin

I’m in a Colorado courtroom. The court is calling and processing cases. The prosecutor kept saying, almost by rote, ‘Judge, on this case we have evidence of prior bad acts under rule of evidence 404(b).’ She would then proceed to tell the judge what a bad person the defendant was and what prior bad acts they had on him. Apparently, the judge was supposed to consider this when imposing the sentence on a plea bargain. What the prosecutor didn’t know is that I was looking at this as a lesson in how to deal with government oppressors.

I saw a similar principle in a book I read on cross examination. Whatever evidence you can find that a witness has previously, at any time in life, deceived, lied, or acted fraudulently can be used to impeach a witness. You can see this principle in real life action in the OJ Simpson murder

O.J. Simpson on the cover of Newsweek and TIME.

O.J. Simpson's prior bad acts came out in detail in the books written about the trial and the wrongful death civil suit.

trial. The defense team got hold of a recording of Detective Furman calling black people “niggars”. F. Lee Bailey was the attorney selected to use those tapes to impeach Furman’s testimony. This is why good defense attorneys fight to get the disciplinary history of the police witnesses in a criminal case. They can use it to make the officials look like buffoons on the stand. This is why prosecutors fight hard to keep these records out. Until evidence of prior bad acts by the officers is obtained the officers look so sincere, honest, and respectable up there on the witness stand in their uniforms and badges.

Rule of evidence 404(b), as discussed below in a Colorado appellate decision, reads virtually the same in all states and is usually patterned after the Federal rule. Speaking of Federal; you might want to start making a contemporaneous record of IRS personnel’s prior bad acts; you might need those at some point!

Defendant asserts the trial court abused its discretion in admitting evidence of other transactions because such evidence was dependent upon an inference of defendant’s bad character. We are not persuaded.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity with that character. However, such evidence is admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b).

In addition, evidence of prior acts is admissible if it: (1) relates to a material fact; (2) has a tendency to make the existence of the material fact more or less probable; (3) is relevant independent of the inference that the defendant has a bad character and acted in conformity with that character in committing the crime; and (4) has probative value that is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo.1990).

A trial court has substantial discretion in determining the admissibility of prior acts evidence, and such determination will not be disturbed on appeal absent an abuse of such discretion. People v. Groves, 854 P.2d 1310 (Colo.App.1992).

Here, the trial court admitted the following evidence of prior acts of defendant. First, while in New York, a friend of defendant arranged for a woman real estate agent to show him a cabin. When the agent arrived at the cabin, defendant met her there, strangled her, and robbed her. Second, also while in New York, defendant made two phone calls to service providers and falsely identified himself. One call was to a massage therapist. Defendant falsely stated that he was a Vietnam war veteran and asked the woman to come to his home to give him a massage. The other call was to a baby sitter when he had no need for one. Both women declined defendant’s requests.

The court determined that this evidence was relevant to prove intent, identity, motive, preparation or plan, and modus operandi. The court also instructed the jury that the evidence was to be used solely for those purposes.

Although this evidence may have led to an inference of bad character, it had relevance independent of that inference. Thus, we agree with the trial court’s treatment of this evidence. People v. Cook, 22 P. 3d 947, 951-2 – Colo: Court of Appeals, 2nd Div. 2000

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