33rd / 424th District Courts

We (judges and lawyers alike) frequently deal with the "Objection, 401, 404b, 403" litany and we know intellectually what all that means, but do we have a structure within which to actually "run the traps" on the filter that those sections of the Evidence Code provide?

Texas Rules of Evidence 404(b) ( a/k/a 404b ) is one of the most litigated of all evidentiary rules.

I have a way of processing that multi-level filter that might be helpful to others, and at the same time I invite discussion on your views of this "thought flow" which goes like this:

CHARACTER EVIDENCE OFFERED -- other crimes or bad acts

• 401 Relevance - OK
• 404(b) Purpose for the other crimes or bad acts other than simply bad character:
• What is the connection other than to show character?
• If no other purpose -- INADMISSIBLE
• If another purpose, then
• PROVES WHAT? (re-check relevance)
• If the offered purpose is relevant, then CONDITIONALLY ADMISSIBLE
• 403 BALANCING -- does the probative value outweigh the prejudicial effect?

The problem I often see is that the "bad stuff" is offered, an ostensible purpose other than to show bad character is offered, but in the light of that purpose there is no relevance. Keep the eye on the ball: it's all about relevance.

And for a totally different way of digesting the ins and outs of 404b, click here. You'll need Java 1.4 or higher on your computer and the java takes a while to load. Be patient. When done, you should see a "mind map."  It will open in a new window.  After I present a 404b piece at the Shook and Childress CLE event on 5/6 there will be a more detailed paper available, but you should come to their CLE for the full discussion and for Q & A.