PROCEDURE FOR EXAMINATION REVIEW. I will be available to discuss examination results during the Fall semester, beginning after Tuesday, September 16, 2003. Exams and the respective Feedback Memorandum will be available for pickup from my secretary beginning on that date.
REVIEW POLICY. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
NO GRADE CHANGES. I want to make one thing perfectly clear: I have never changed an exam grade and, with the exception of "Incomplete," I have not changed final grades. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.
Part
I: True or False (24%)
In
this section, you must select either “True” or “False.” The statement,
as drafted, when read in the context of a Federal Trial, is either True
or False.
1.Irrelevant evidence is not admissible.
TrueFalse
Answer: True. FRE 402[B] only allows relevant evidence to be admitted. If deemed irrelevant, it is therefore inadmissible. This is the flip side of question no. 5 last year.
Answer: False. While experts may provide testimony in the form of an opinion, they may also testify as to their own observations of relevant information. We discussed this in relation to Problem 9-D at page 798. This is essentially the same question as no. 15 last year.
Answer: False. These are the facts of US v. Lightly. As we discussed in relation to Lightly, at page 528, the presumption of competency of FRE 601 applies even to persons about whom we have questions regarding their mental health. If the court then found that, though insane, the witness could understand the oath, had memory of the assault, and could communicate what he saw or did, he could be found to be a competent witness.
Answer: True. As we discussed in class, questions about fees received in prior cases from the same parties can show bias. We discussed this extensively in class this year because of the Florida rule. The Collins case in note 1 at page 597 so ruled, as I indicate in the website. A proper foundation would establish a link between the witness and the same party or type of party or some sort of “professional witness” charge.
Answer: False. FRE 103(d) allows the appellate court to reverse, even absent an objection, when the ruling constitutes “plain error.”
Answer: False. Misdemeanors that involve truth telling can be used in such cross-examination of any witness. FRE 609(a)(2).
Answer: False. The bad person inference is always bad. Character evidence becomes admissible under the rules for inferential purposes, such as, action in conformity therewith on a particular occasion, the most extreme version, under FRE 415.
Answer: Not Counted.
This one was by far the most difficult question with only a 33 percent accuracy rate, so I threw it out, though I made sure that the change only helped students and did not reduce anyone’s grade.
Clearly, the defense has opened the door to specific acts questions being asked of their character witness, and Michaelson makes it clear that once this happens the prosecution is entitled, as a matter of course, to ask questions about specific acts of the witness. However, I emphasized the “good faith” basis standard in class. the question facts are based on problem 5-D. Now that the defendant has chosen to deploy character evidence, the reference to specific acts during the cross-examination is allowed by the rules and by Michaelson, which is explained at page 473 of the text. But, as I constantly reminded you, the prosecutor must have a good faith basis for asking the question. Note 3 at page 474, and the web explanation therefor. Murphy v. Bonnano, in the credibility area, also explains that the court must establish the basis for the questions about prior bad acts before allowing the jury to hear it, to establish the threshold “reasonable minds might find” that the act occurred.
Answer: False. 403[e][3] does indeed allow relevant evidence to be excluded on the basis of considerations of the needless presentation of cumulative evidence, but that is not the only reason that could result in 403 exclusion.
Answer: False. The party itself can be questioned via leading questions. FRE 613(c)[3] When a party calls a [3-a] hostile witness, [3-b] an adverse party, or [3-c] a witness identified with an adverse party, interrogation may be by leading questions. We discussed this in relation to Tuer v. McDonald.
Answer: True. As discussed at page 572, here you have a showing that the witness (a) reviewed the binder and (b) that this review influenced her testimony. The court has the authority to order this production. Under FRE 612(2), the court has the discretion to order the production of any document that was used by the witness to refresh her recollection about matters as to which she testifies at trial. Once the witness testifies that her memory was refreshed by ALL the documents in the binder, and the binder is only 30-pages, you have actual proof of reliance upon it for the in-court testimony, which is strong showing favoring production. As we discussed in relation to the Julian v. Raytheon case, review by the witness AND its use to refresh their memory for the purpose of testifying, can overcome work-product objections to producing them. The applicable standard is tough, but it is possible to meet it, which is all that was required to produce a “true” response.
Answer: True. FRE 615[B] does not include the next of kin of the victim among those exempted from exclusion. The other exceptions clearly did not apply under these facts (the government is the party here), and I gave you the necessary finding for the “essential” exception, and limited statutory exceptions to the one referring to the victims. I included this question, given our comparison of the Florida Rule and the discussion of Problem 7-B at page 581. The only statutory exception refers to “victims”, and, as we discussed in class, this does not include next-of-kin. Note that FRE 615 is phrased as “shall” upon party request, thus explaining the use of “must” in the statement. State rules often vary, however.
GENERAL COMMENT: I was surprised and puzzled that a couple (but really two or three people) were clearly using exemptions and exceptions of 801(d), 803 and 804 to call items “nonhearsay” in spite of the clarity of the instructions. This is especially puzzling, given the hearsay quiz that we discussed at the beginning of the semester and last year’s exam.
Answer: Non hearsay. A variation on “I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement is offered to prove lack of testamentary capacity, and it is nonhearsay. In reality, there was no will in favor of Ms. Smith, but Mr. J. Howard Marshall, III was disinherited by an existing will and contested it in court.
As I noted in class, this is the position taken by our casebook authors and by me in this area. Others, such as professor Graham, take a different position. But, you are judged in my class in accordance with how the material is taught in class.
hearsaynonhearsaya) That he (Pacheco) attended meetings at Peter Dionne's house, with Pantoliano present, during which the operation was discussed.b) That Peter Dionne asked him (Pacheco) to hold $100,000.00 in cash which was to be used to buy a boat.c) That he returned the money to Peter Dionne, who gave it to Pantoliano whowas to use it to buy the boat.
d) That he (Pacheco) was present when Pantoliano returned some of the money after being unable to purchase a boat.
e) That Pantoliano had twice taken him (Pacheco) to a fishing dock where appellant was working as a watchman. There, they observed the comings and goings of police and other passersby. Pantoliano also told Pacheco that should anyone be working late at the dock where he (appellant) was working, he would get the keys to two other docks which could be used to off-load the boat.
f) That the venture fell apart because the Coast Guard seized the mother ship.
These statements are consistent with those made by Pacheco during his direct testimony and are offered as proof of Pantoliano’s guilt. These statements are:
Hearsay. The statements are being substantively offered into evidence and are thus hearsay. It is also not admissible as a prior consistent statement because the declarant had a motivation to lie about the defendant and Tome makes clear that this will not be allowed under FRE 801(d)(1)(B). However, Pacheco was available for cross-examination regarding the statement, and there was a charge of improper motive and recent fabrication. Finally, it does not qualify as a co-conspirator statement because they are made after the conspiracy expired and to a known law enforcement officer. Modified from U.S. v. Piva, 870 F.2d 753 (1st Cir. 1988) (guess who wrote the memo for this one). Piva predates Tome and the court found that the motive to fabricate issue had not been preserved for appeal.
Non-Hearsay: The non-hearsay use is naturally impeachment by prior inconsistent statement (non-truth use; see also FRE 613(a)). The defense cross-examination context clinches it every time. As we discussed in class, courts routinely allow such use of statements and choose the non-hearsay impeachment use on cross-examination, over the truth of the matter asserted use.
Hearsay. The statement is a confession, an admission in the civil context: “I did it,” offered to prove that he did it, i.e., that Miller admitted hurting the plaintiff, thus proving that he did it, which goes to prove negligence. Accordingly, it is being offered to prove the truth of the matter asserted. It is however a classic Party-Opponent admission and will be so treated under FRE 801(d)(2)(A). If you wanted to get more sophisticated, you can say that the “I am sorry” part is an express statement of state of mind from which we can infer the admission. It would still be offered to prove the truth of the matter asserted, the state of contrition. After that, the appropriate exemption is the admissions doctrine.
Nonhearsay. The verbal act by Lynn that is offered as circumstantial evidence of Otto’s guilt. Like “My husband is in Denver” in problem 3-K.
Nonhearsay: Bias impeachment based on circumstantial evidence of state of mind (a la Anna Stoufer’s will). Counsel for the defense is certainly not offering to prove that his client is scum. The facts are the same as last year, except that this year the statement is offered to impeach Ruth using bias and not to prove anything against Robert. In this context, the defense will get the call on the nonhearsay vs. hearsay use every time.
Hearsay. But admissible under FRE 803 to prove what Professor Larson did by inference. Here is the easiest of the Hillmon/Pheaster inferences. The statement is offered to prove his intent, which is the truth of the matter asserted, and then by inference to prove what the declarant actually did. 803(3) easily allows this one.
Hearsay. This is a variation of the Williamson scenario that I specifically mentioned in class. The statement is offered for its truth, that Robert and Bill were engaged in distribution of cocaine. The statement is however admissible under FRE 804(b)(3). Clearly, Harris is unavailable, he is dead, and the statement is against Harris’ interest and its context makes it reliable because he has no reason to lie about Nichols. The statement of course does not fit within the co-conspirator exception of FRE 801(d)(2) because it cannot be described as being in furtherance of the conspiracy (it is analogous to the casual statement in the bar in Problem 4-H).
In this section, I focused on the discussion, rather than the label.I took off two points for each discussion of an item that should have been classified as nonhearsay.Since you had already answered the hearsay question under FRE 801(a),(b) and (c), you did not need to discuss that here. I focused mostly on the discussion of hearsay exemptions and exceptions in this section, above any other discussion.
It was important to note that the conspiracy had ended when the mother ship was seized by the Coast Guard. Moreover, knowing cooperation with law enforcement cannot be in furtherance of the conspiracy. Therefore, the statement failed at least two of the prongs of 801(d)(2)(E). This also precluded “verbal acts” arguments, though the content of the statements made them difficult anyway.The fact that it was being offered substantively, precluded arguments for nonhearsay rehabilitative use (which might have resulted in a “nonhearsay” answer anyway, so they were inappropriate at the “hearsay” discussion). Nevertheless, keep in mind that the better rule is that the pre-motive to lie requirement of Tome should apply to any use of prior consistent statements.
Arguments under 801(d)(2)(D) and (C) under these facts were strange. You do not authorize your co-conspirator to rat you out to the cops.
I was concerned by statements that Rule 805 applied to argue that Costa could not testify to what Pacheco said, if an appropriate exception could be found. This was not hearsay within hearsay. It was direct testimony about an out of court statement which was hearsay. However, to the extent that Pacheco had made reference to what Peter Dionne or what Pantoliano had said, in his statement to Costa, then you would have an 805 situation. Also, Brutton references were not appropriate, given that this was not a co-defendant situation.
No. 7: Hearsay, but admissible (or potentially admissible). Under FRE 803(3) ultimately to prove what Professor Larson did by inference. Here is the easiest of the Hillmon/Pheaster inferences. The statement is offered to prove his intent, which is the truth of the matter asserted, and then by inference to prove what the declarant Larson actually did. 803(3) easily allows this one. The second sentence, which indicates that the offering party wanted to prove only what Larson did, indicates that you can limit it: Larson intended to go out to lunch and did in fact go. You do not wish to establish with whom. Thus, this is easily allowed by the Rule and the Hillmon doctrine. The ACN disapprove of using Hillmon to establish what Smith did, not what Larson did.
No. 8: Hearsay, but potentially admissible. This is a variation of the Williamson scenario that I specifically mentioned in class. The statement is offered for its truth, that Robert and Bill were engaged in distribution of cocaine. The statement however may well be admissible under FRE 804(b)(3). Clearly, Harris is unavailable, he is dead (804(b)(4)), and the statement is against Harris’ interest in that it exposes him to criminal liability. The narrative in this case was arguably, under the totality of the circumstances self-inculpatory, even if it did refer to a third party (Nichols). Harris was confessing to being involved in a conspiracy to distribute cocaine with Nichols. One analogy is to the Schiappa case in Note 7 following Williamson (essentially, “we did/are doing it together”); Schiappa also points out that the intended listener does not have to be a police officer for the statement to be “against interest.” It was against interest, and, given enough corroboration, might be admissible under Williamson. Alternately, the references to Nichols could be labeled collateral and thus inadmissible. The statement probably does not fit within the co-conspirator exception of FRE 801(d)(2)(E) because, while it was made by a conspirator, during the pendency of the conspiracy, it cannot be described as being in furtherance of the conspiracy (it is analogous to the casual statement in the bar in Problem 4-H). Alternately, some students made the interesting argument that asking for permission to miss the dinner freed Harris to go deliver the drugs and was thus “in furtherance” of the conspiracy. The content and context make any such argument far-fetched, but the absence of the furtherance requirement keeps it out of the “verbal acts” area. However, even if the statement could qualify as a “verbal act” by Harris, its admission as nonhearsay against Nichols would be an abuse of the verbal acts doctrine.
Some students also argued for admissibility under 803(3) and Hilmon/Pheaster, which I thought was pretty imaginative and interesting. However, this case presents a real problem on the temporal prohibition of 803(3) regarding facts remembered or believed, much more than Pheaster, since the really crucial information here is the pre-existing conspiracy and the ownership of the drugs, again, facts established before the making of the statement. Moreover, unlike Pheaster, we know what happened on October 15: Harris was caught with 40 kilos of cocaine. Still, perhaps it can be used to contextualize an otherwise strong case, especially given the unavailability of the witness. Still, 804 is the path of least resistance on this one.I was surprised that anyone would argue that the last sentence of 804(a) would preclude the prosecution from using the statements. It would certainly preclude Nichols from using them, but the prosecution cannot be held to be the cause of the absence in this case.
By the same token, very few students argued that 804(b)(6) should be used, given that Nichols had Harris killed (probably because we did not cover it). In real life, even if you suspect that, it is hard to prove, so, (b)(3) is the path of least resistance. Nevertheless, the argument was available under the facts given.
References to the Business Records exception (803(6)) were simply terrifying. References to agent or representative admissions are not completely off base, but, given the conspiracy charge, and some constitutional concerns, it is better to use the co-conspirator exemption. These references got few points because of the fact-pattern and because we did not address the subject of using the business exceptions of 801(d)(2) in non-lawful business contexts in class.
Also, any admission in facts like these raises Confrontation Clause issues as Lilly, in the notes following Williamson, reminds us.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
Limited Space. You must answer the questions in the space provided therefor in the exam itself. Do not use bluebooks. I encourage you to outline the answers before you start to write, but do not include scratch paper or any additional material with your completed exam. In answering the short-essay questions, please be succinct. You might want to draft the short answer on your scrap paper, before writing it in the answer space. Please strive for precision, specificity, and thoughtful analysis in all points you do address.
The trial judge determined that the alleged assault against Cadet Smith could be admitted for the purpose of demonstrating appellant’s propensity to commit similar sex offenses as charged. The following findings of fact and law were made:
1. The Accused was found guilty, pursuant to his plea of guilty, of unlawful entry of Cadet Smith’s dormitory room on 18 October 1996 and indecent assault on Smith once he was inside the room.2. The indecent assault occurred while Cadet Smith was asleep on her bed in the early morning hours at approximately 0500. The Accused committed the assault by placing his hand inside her underwear and touching her vaginal area.3. The Accused is now charged with the indecent assault of Cadet Johnson on 26 April 1996, as well as housebreaking of Cadet Johnson's room, at 0430 hrs. on 26 April 1996, that is, unlawfully entering her room with the intent to commit the criminal offense of indecent assault.
4. In order to prove the housebreaking offense, the facts of the indecent assault to which the accused has pleaded guilty should be entered into evidence as part of the facts and circumstances surrounding the commission of the offense to try and prove the Accused's intent.
5. With regard to the alleged sexual assault, the proffer in the prosecution's reply to the motion in limine states that Cadet Johnson will testify that the alleged assault occurred while she was asleep in the early morning hours. The proffer further states that she woke up in her dormitory room and found Wright on top of her and that Wright had put his hand under her clothes and was touching her vagina.
(The
question is a partly-verbatim and partly-modified version of the facts
in the opinion in U.S. v. Wright, 53 M.J. 476 (CAAF 2000).
This
part of the feedback memo should look familiar, since, with modifications,
it is taken from the feedback memo for your practical project.
However,
in reading your answers, it was painfully obvious that many had failed
to read, and certainly, to understand the contents of the feedback memo
or of “the forest” structure.
A well-reasoned opinion had to go through the entire “Forest” analysis. As you know, you always start with the 104(a) vs. 104(b) discussion.However, since he has already entered a plea of guilty to the other offense, the defendant cannot reasonably contest the occurrence of the other act that is being offered into evidence. He can only challenge the appropriateness of admitting it for the propensity inference under FRE 413, which, is a legal question for the court. Thus, the difficult Huddleston and Bourjaily questions are avoided in this situation (quite purposely, by the way).As I have indicated, you can call the legal question a matter for the judge either under FRE 104(a) or as a threshold legal matter under 104(b) if you call the matter one of conditional admissibility. Here, there are clearly legal questions that require the court to make findings regarding the admissibility of the alleged prior acts under FRE 413, given that this is a case involving adult women as victim and alleged victim, respectively. The next step is relevance.
The liberal relevance standard clearly favors the offering party. Moreover, the court is not required to accept the strongest evidential hypothesis, just a reasonable one.As I discussed in class, the basic propensity argument meets the standard of FRE 401 and 402, and thus makes other acts evidence potentially admissible. A person who commits one crime of sexual assault is more likely to commit others. Here, the strongest argument in favor of relevance, as well as in favor of 413 use, is the many similarities between the two acts: identity of the victim, place of crime, time of day, breaking in, the type of touching.
Accordingly, the evidence regarding the other sexual assault has a tendency to make the existence of a fact that is of consequence to the determination of the action (the occurrence of the charged sexual assault) more probable than it would be without the evidence. The evidence is thus relevant. Under FRE 402[B] irrelevant evidence is not admissible, and only relevant evidence is potentially admissible, unless otherwise provided, as stated in FRE 402[A].
The general disallowance of character evidence, together with the always-unfairly-prejudicial “bad person” inference, must be kept in mind both by the offering and by the opposing side in evaluating the admissibility of these actsThe General Disallowance of Character Evidence. FRE 404 states “except as otherwise provided.” In this area, it is important for the courts to note that character evidence is not admitted lightly under the Federal Rules of Evidence. A person should never the found guilty because they are “bad people,” rather, they should be found guilty because the jury is convinced beyond a reasonable doubt that they committed the charged offense. FRE 404(a) generally forbids the use of character evidence to establish action in conformity therewith on a particular occasion, thus trumping the general relevance analysis in the previous section. FRE 405(a) explains that reference to specific acts constitutes the least-favored character evidence. Moreover, the first sentence of FRE 404(b) specifically provides that “[e]vidence of other ... acts is not admissible to prove the character of a person in order to show action in conformity therewith.”
Therefore, despite passing the FRE 401/402 standard, the acts run into the general prohibition against character evidence in FRE 404, so an express exception to the character evidence disallowance must be found. The instructions from the judge asked you to focus on the propensity admissibility argument, and thus on FRE 413.Prior Acts? This entire area is often referred to in practice as “prior acts” or “prior bad acts.” But the rule does not expressly include a temporal requirement, rather it merely refers to “other acts or wrongs.” Accordingly, the fact that the sexual assault to which the defendant has already pleaded guiltyoccurred several months after the alleged attack for which he is currently on trial is not a bar to admissibility.[i]
Although temporal proximity between the alleged“other acts” and the ultimate fact in the underlying litigation is one factor to be considered by the court in deciding on admissibility (Duran & Duranv. Maywood, 221 F.3d 1127 (9th Cir. 2000)), federal courts have held that the “other acts” language of FRE 404(b) allows admissibility of prior or subsequent acts. See, e.g., U.S. v. Bibo-Rodríguez, 922 F.2d 1400 (9th Cir. 1991). Given the facts, you had to take the position that courts should take a similar tack with the “another offense or offenses” language of FRE 413.
FRE 413. FRE 413(a) allows the use of “other acts” evidence in criminal cases. Accordingly, “other acts” which would constitute the “offense of sexual assault” can be used against the defendant in a sexual assault case like this prosecution. The first question is if the “other offenses” constitute a violation of the type described in FRE 413(d).
Rule 413(d)(1) specifically refers to the crime of “sexual abuse” defined in Chapter 109A of title 18 (18 U.S.C. § 2241) which forbids “knowingly caus[ing] another person to engage in a sexual act—(1) by using force against that other person.” The trial court found that the conduct fit in this section, thus taking the position that the unwanted sexual touching was a use of force that produced a sexual act. This also implies that the unwanted touching of the genital area is a “sexual act.” This is not surprising, given the sexual battery nature of this crime, although fitting it in requires some careful interpretation of the text. But, in addition to 413(d)(1), the act clearly fit 413(d)(2) in that there was unconsented contact between defendant’s hand and the victims vaginal (genital) area. Since this was not a criminal law exam, spending any more time on this issue was a waste of your time. Nevertheless, one student insisted on doing that, thus disregarding the instructions and writing their own question, with predictably unfortunate results.
Accordingly, evidence of the defendant's “commission of [the other] offense ... of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” FRE 413(a). So we are back to the propensity argument from Part I. However, you should also note the 404(b)[2] is expressly allowed by 413(c).
(Several students referred to 413(c) as requiring the court to conduct the 403 balance. This is simply not true. 413(c) is intended as a rule of inclusion, not as one of exclusion or even balancing. 413(c) is there to ensure that courts do not read 413(a) as limiting admissibility under other rules, especially under 404(b)[2] and other similar provisions in chapter 4 and in chapter 6.)
The defendant has had ample notice and opportunity to heard on this matter, therefore, the requirements of 413(b) have been met.
Gordon factors used to establish similarity. Good analogy.
Discussion of 410, given the pleas of guilty, was appropriate. FRE 410 does not bar the use of this particular conviction because it was based on a guilty plea. The allocution could be used in establishing the admissible factual details of the prior offense, though they would be offered by the victim of the assault. Discussion of 609, which is limited to impeachment uses seemed unnecessary.
Now you must balance permissible uses against impermissible uses.
The better practice is to establish all legitimate and illegitimate uses of the evidence and to then conduct the FRE 403 balance. That said, however, there is one very specific discussion of FRE 403 that must be tied to Rule 413 (and to the entire 413-415 group).The 403 balance is the final hurdle to admissibility, unless the rule expressly eliminates the requirement. Some have argued that FRE 413 is an “automatic admissibility” rule that precludes the exercise of discretion under FRE 403. The argument is based on the “is admissible” language of 413(a). Most courts reject the “automatic” admissibility argument. The better rule is that FRE 403 does apply, and that has been the finding of several circuit courts. (There is an extensive note about the 413-415 cases in the web site. Some of these cases find that 403 balancing is in fact constitutionally required, otherwise, FRE 413 would not pass constitutional muster, especially in this criminal context).The fundamental unfair prejudice argument in this situation, which applies to any use of “other acts” evidence, is that the jury will simply find that he is a “bad person” and therefore find Wright guilty. Alternately, you are concerned about the emotional effect of the evidence on the jury, which might prevent from objectively evaluating the evidence. The “bad person” inference is always unfairly prejudicial and the defendant is entitled to a dispassionate evaluation of the evidence. However, FRE 413(a) does authorize the propensity use of the evidence. The defense has already conceded that the other assault can be used under 404(b)[2] to show criminal intent to break and enter.
Now the court must balance the real probative value of the evidence that might be admissible, against the unfair prejudice of the “bad person” inference. Admission should occur only if the court believes legitimate probative value is not substantially outweighed by the unfair prejudice (or any of the other five reasons to exclude). The use of a limiting instruction might be part of the court’s balancing (i.e., the court will admit it, but only after giving a limiting instruction, unless the defendant would prefer that no instruction be given.)
References to the policies favoring admissibility would have been appropriate here or in the previous section. Specifically, references to the passage of the 413-415 rules by the Congress as implying that sexual assault victims should be encouraged to report the crimes and to get convictions in the area. Naturally, this must be counterbalanced against the defendant’s right to a fair trial.
The evidence regarding the occurrence of the other act is strong. Since the defendant has pleaded guilty to it, there is no legitimate argument regarding the occurrence of the act. There might be some argument as to the specific facts surrounding it, but in most cases this would be taken care of by the plea allocution statement by the defendant.
In addition to a reliable and credible other act, the act is so similar, that it has high probative value: identity of the victim (female fellow cadets), place of crime (dorm rooms), time of day (early morning hours), breaking in, the type of touching.
The 403 standard favors admissibility, and we have reliable, highly probative evidence and it is not unfairly prejudicial to the defendant. As to confusion or misleading the jury, the reliability of the other act evidence counters such arguments. Moreover, a carefully-crafted instruction on the proper use of the evidence will ensure that the jury uses it for the legitimate purposes already outlined. The court also does not have a reason to believe that this will unduly delay (E-1), waste the court’s time (E-2), or be needless presentation of cumulative evidence (E-3).
Therefore, the decision of the District Court should be affirmed.
Since the evidence is being admitted, the defendant may request certain limiting instructions under FRE 105. In fact, in the real case, the court had to craft a very specific instruction regarding the intent use of the other acts evidence and the propensity use of the sexual assault evidence.
[i] Note that situations like the one in your exam question actually occur with more frequency than you might think. Serial criminals are caught at the end of their crime sprees and law enforcement officials are likely to have a lot of information about the latest crime and little if any evidence about other offenses. That was precisely what occurred in the case that provided the idea for your exam. Consider as well a current example: the man being held for kidnapping a teenage girl and holding her in a “dungeon” is charged with crimes related to her kidnapping and rape. But now several other women have come forward to allege that they too were victims of this serial rapist (including one woman that had attempted to report the crime before the teenager was taken; she was unable to establish the identity of the kidnapper or the location where she was held). It is also quite possible that only after news that a rapist has been arrested, and perhaps even convicted, and is in jail, will other victims feel safe and confident enough to come forward to report crimes against them. Months before being caught, Jeffrey Dahmer, the rapist and murderer who cannibalized his victims, convinced two police officers to return a bleeding, crying, drugged victim to him. He later killed the young man and others. Police did not realize their gross mistake until after they arrested Dahmer for his last murder.