Tuesday, January 1, 2019

Balancing the probative and prejudical effects of prior bad acts

"[T]he same factors that make prior-act evidence probative—similarity and temporal proximity—may also increase the risk of this form of unfair prejudice."

These are the wise words of the Sixth Circuit in United States v. Asher, a must-read case for understanding the push-me/pull-you nature of Rule 404(b) and Rule 403's probative/prejudice analysis. In Asher, the Sixth Circuit reversed the defendant's conviction on grounds that the district court erroneously admitted Rule 404(b) evidence. If you're moving to suppress evidence of a prior bad act, read Asher.

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