Tuesday, February 26, 2019

How to object to 404(b) evidence (and its fallout)

Sometimes civil cases involve issues familiar to criminal-law practitioners.

In Crew Tile Distribution, Inc., the plaintiff, Crew Tile, filed a breach-of-contract claim against Porcelanosa. Porcelanosa countersued, claiming that the contract allegedly breached was forged. The trial court denied Crew Tile’s motions in limine to exclude 404(b) evidence of an earlier and also allegedly forged contract between the same parties.

This was error, but harmless, the Tenth Circuit held, in a decision that offers several lessons to criminal-defense lawyers:

The trial court erred in admitting the evidence. Porcelanosa never identified any proper purpose for admitting the evidence---it just parroted the exceptions listed in Rule 404(b). The proper purposes cited by the district court in admitting the evidence were “divorced from Porcelanosa’s theory of its case,” which was essentially that Crew Tile’s operator was a serial forger. In other words, Porcelanosa wanted to use the evidence for propensity purposes.

But alas! This error was harmless, because the trial court properly limited Porcelonosa’s use of the evidence “to prove the parties’ prior business relationship.”

But wait! Porcelanosa exceeded those limits by arguing to the jury that the evidence proved Crew Tile’s operator was “a forger.”

But alas! Crew Tile did not object to this argument, instead meeting it head on in its own arguments and evidence. “Having failed to make a timely objection to the evidence at the time that it was presented and having personally developed [the challenged evidence] . . . [Crew Tile] waived any right that [it] might have otherwise had to challenge this evidence on appeal.”

And thus: Object if the basis offered for 404(b) evidence is inconsistent with its true purpose; object if the court does not properly limit the evidence; and object if the government improperly uses the evidence.

We’ve said it before and we’ll say it again: Object, object, object!

Thanks to Tom Bartee for this post.

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