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Bar Exam Review Question
Jess opened a restaurant and nightclub called Shakes. The
establishment's general manager was Mo, Jess's girlfriend.
Initially, Shakes succeeded financially, but business declined
about a year after it opened. Jess paid his suppliers cash on
delivery and owed his workers back wages. Jess's landlord
claimed $600,000 in back rent and damages, and began eviction
In the early morning of April 4, apparently believing he had
insurance, Jess called his insurance agent to report a fire at
Shakes. Mo testified that when Jess learned that the fire
damage to Shakes was not extensive, he was furious with Adams
for having "botched the job." When interviewed about the fire
in September, Jess, who was not then a suspect, told
investigators that the fire might have been connected with the
robbery of the Shakes drop-safe, which held between $5,000 and
$7,000, and that a rival club might be responsible. Jess also
mentioned Chrissy and Adams as suspects. Mo initially denied to
investigators that Jess had hired Adams to set the fire. After
she learned that Jess had accused Chrissy and Adams, and after
investigators told her she could be indicted, she implicated
Jess. In the course of these discussions with investigators in
October, Mo was promised immunity. However, she lied about her
involvement in the fire and her relationship with Jess to
investigators and in two grand jury appearances. The government
did not revoke her immunity.
At Jess's trial, Mo was one of the
government's main witnesses. At trial, the court allowed Mo to
testify that one year prior to the fire at Shakes she saw Jess
set fire to a car he had leased. Mo said that Jess parked the
car on a piece of property he owned and that he left in another
car to buy gasoline, with her as a passenger. When Jess
returned, he threw newspapers into the back of the car, poured
gasoline over them, and ignited the newspapers. Mo said Jess
told her that he torched the car because the lease had expired
and he owed excess mileage charges, and that he expected
insurance to cover the loss. On cross-examination of Mo, Jess
offered the car lease agreement to impeach Mo's testimony that
the lease had expired. The agreement showed that the lease had
23 months remaining.
Following Mo's testimony, Officer Gamby testified that he
investigated the burning of a car that matched Mo's
description. The prosecution seeks to offer the evidence of
both fires to show how the defendant reacts to financial stress.
What is the most likely outcome?
Bar Exam Review answer choices:
(a) The court will find that the defendant's prior bad acts may
be admitted to prove his criminal character.
(b) The court will find that the evidence is admissible to show
a criminal relationship.
(c) The court will find that the evidence is not admissible
because it is prejudicial.
(d) The court will find that the evidence is not admissible.
The correct bar exam review response is (d). The court will find that the
evidence is not admissible. Rule 404(b) provides that evidence
of a defendant's prior bad acts may not be admitted to prove
his criminal character or propensity to commit crimes of the
sort for which he is on trial. To admit evidence of prior bad
acts, a trial court must find that the evidence passes two
tests. First, the evidence must have "special relevance" to an
issue in the case such as intent or knowledge, and must not
include "bad character or propensity as a necessary link in the
inferential chain." See, United States v. Frankhauser, 80 F.3d
641, 648 (1st Cir. 1996). Second, under Rule 403, evidence that
is specially relevant may still be excluded if its probative
value is substantially outweighed by the danger of unfair
As the text of Rule 404(b) indicates, prior bad act evidence
may be specially relevant if, for example, it goes to the
defendant's intent, knowledge, plan, absence of mistake, or
identity. Additionally, prior bad acts may be admitted in
conspiracy cases under 404(b) if they "explain the background,
formation, and development of the illegal relationship." United
States v. Escobar-De Jesus, 187 F.3d 148, 169 (1st Cir. 1999).
In a case that also involved arson of a restaurant owned by the
defendant, evidence was excluded that showed the defendant, in
a separate incident, threatened to "burn out" a tenant after
she did not pay a full month's rent. See, United States v.
Utter, 97 F.3d 509, 514 (11th Cir. 1996) As in this case, the
government argued that the tenant's testimony would show "how
the defendant reacts to financial stress." The court rejected
this rationale, stating: "This is the type of character and
propensity evidence prohibited by Rule 404(b)." Id.
Here, the car fire evidence is specially relevant under Rule 404
(b) to Jess's relationship with Mo because it shows that he
trusted her so much that he was willing to commit a crime in
her presence. However, prior bad act evidence that surmounts
the bar of Rule 404(b) may still be inadmissible under Rule
403. This rule requires the trial court to exclude the evidence
if its probative value is substantially outweighed by "the
danger of unfair prejudice." Fed. R. Evid. 403. Under Rule
403's weighing test, "it is only unfair prejudice which must be
avoided." United States v. Rodriguez- Estrada, 877 F.2d 153,
156 (1st Cir. 1989).
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