Now, so we’ve talked about whether or not something is intrinsic or extrinsic. That was the first of the four elements. The second one is ‘relevance’. Now listen to this, ok? We know that they can’t put in propensity evidence. This is from Beechum. The extrinsic offense is relevant to an issue other than propensity because it lessens the likelihood that the defendant committed the charged offense with innocent intent. Really? Ok! What I’m having difficulty understanding is how is that different from propensity? It’s really, the distinction is almost difficult meaningless. You know point that out, when you’re arguing this to a judge or better yet; ask the judge to require that the prosecutor explain the difference between propensity to intend and propensity to commit!
You know there’s a really descent in Beechum which I just love and I’ll be quoting it throughout but it says,” the majority opinion would change the rule from a total bar of the evidence which we had under Broadway to a balancing test substantially waited in favor of admissibility and this is the language that I like. Simply because a judge metaphysically classifies a question as; propensity to intend rather than propensity to commit! And these are just; these are just fine distinctions that there is no righter right answer. I can’t give you a magic key to know what to tell the judge but I can tell you beware of this. the distinction is so fine that it’s just a matter of whether or not you can, you can argue your case better than the prosecutor can? Or, make the prosecutor step up to the plate and make him explain the difference between these two things. It’s pretty hard to. One could argue I suppose, that propensity is something that you carry around inside of your head all through life that is just part of your personality. One could argue that, intent on the other hand is just something that you had in your head in that particular moment and time. I suppose that’s a logical argument but, it’s pretty fine distinction. So be aware of that.
So, the balancing! In order to be admitted… that was relevance now we’re going to third part; the balancing part! In order to be admitted the probative value, now listen to this language, it sure sounds unnecessarily complicated; must not be substantially outweighs by its undue prejudice. What does that mean? In order to be admitted it must not be; translated into, it will be admitted unless the undue prejudice substantially outweighs probative value. That means that clearly the rule is geared the default position of the rule, of the balancing part of the rule is to let it in. As long as there’s a nexus, a logical nexus of some kind the default position of the balancing test is to let it in according to this language. It must not be substantially outweighed. It’s kind of a weird way to write it but that’s what it really means.
Another way to understand it is ask the question in a different way. If you ask the question in a different way, if you ask yourself,” well what if the probative value and the undue prejudice what if they’re equal! Than what?” Well under 404, if they are equal, the extraneous evidence comes in. Now compare that to for example; rule 609 the impeachment rule. If the undue prejudice and the probative value are equal under 609, it doesn’t necessarily come in. Another way to understand this balancing test is; what if they’re equal? If they’re equal under 404B the extraneous evidenced comes in. So basically once you get to the balancing test you’re kinda behind the eight ball. So, try to avoid the balancing test by arguing that there’s no nexus first.