Evidence Outline


Civil Cases: reverse 403 “plus” test



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Civil Cases: reverse 403 “plus” test.

  • 412(b)(2): to admit, probative value must substantially outweigh the danger of harm to the victim and unfair prejudice to any party.

  • Weighed toward exclusion:

  • rationale: protect victim, encourage prosecution of these crimes.

  • § 413–15: The D’s prior sexual assaults are admissible for any matter to which they are relevant, even to show propensity (conformity therewith).

    • thus, no need to find 404(b) purpose, and all prior acts of D will be admitted under these rules. Only limitation is 403.

    • Lemay – 403 still applies and judge can choose to exclude prior sexual conduct of D in their discretion.

      • But balancing will be different:

        • probative value as to the propensity inference will count.

        • prejudice has to be from something besides propensity inference.

      • D will rarely win on this 403 balance.

    • [many commentators think 413–15 should be limited to consent cases, but not apply in “identity” (it wasn’t me) cases]


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