Relevance | Problem 2

Plaintiff sues Defendant, an owner of a newspaper, for libel after releasing an article that accused Plaintiff of committing a string of robberies on New York City’s Upper East Side. To prove that Plaintiff committed those robberies, Defendant offers evidence that Plaintiff had been convicted of other robberies that took place in New Jersey within the last three years.

Plaintiff objects to the conviction evidence. Ruling? 

Objection sustained. Three words: prohibited propensity evidence. The twist here is that the prior-crime evidence is offered by a defendant in a civil case to establish truth, which would be an absolute defense to a libel claim. Nevertheless the law under FRE § 404(b) disallows such “character” evidence to prove that a defendant acted in accordance with that character on a “particular occasion.”

Note that FRE § 404(b)(2), however, may permit such evidence if offered for another purpose such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of misstake, or lack of accident.” But here, Defendant is not using any of these other purposes and instead asserts that the article is simply true by pointing to the prior crimes. But using such character evidence to prove truth is disallowed.

This problem is similar to Problem 20 in Hearsay v. Not Hearsay. That fact pattern contained similar prior-bad-act evidence offered by a defendant to justify an allegedly unlawful firing.

New York is aligned with federal law. The Fanelli case states the following rule in civil cases: “evidence of character is not admissible in a civil case to raise the inference that a party acted in conformity therewith.” Fanelli v. di Lorenzo.