Rule 404(b): Evidence of Other Crimes, Wrongs or Acts
| Publication year | 1994 |
| Pages | 355 |
| Citation | Vol. 23 No. 2 Pg. 355 |
1994, February, Pg. 355. Rule 404(b): Evidence of Other Crimes, Wrongs or Acts
Smith and the defendant were playing polo. During one play for the ball, the defendant appeared to ride his horse intentionally into the back and hind legs of Smith's horse, causing it to stumble. The defendant's horse then struck Smith's horse again. The second blow knocked Smith's horse to the ground. Smith fell with his horse and suffered a severe blow to the head upon hitting the ground. Smith died two days later from the head injuries caused by the fall.
Smith---through his personal representative---has sued the defendant for wrongful death. The plaintiff believes and intends to prove that the defendant deliberately violated an established safety rule of polo when he rode into Smith's horse. The plaintiff claims the defendant acted either deliberately, willfully or with reckless disregard.
During the trial, the plaintiff's counsel calls three witnesses who are each prepared to give eyewitness testimony that on three separate occasions before Smith's death, they saw the defendant ride his horse into other horses during polo games. One of the witnesses had been struck and knocked off his horse by the defendant during a polo game the week before the incident involving Smith.
Citing Colorado Rule of Evidence ("C.R.E.") 404(b), the defendant's attorney objects to the proposed testimony. The plaintiff's attorney argues in response that the evidence is being offered to prove that the defendant knowingly and intentionally attacked Smith's horse. The attorney contends that the defendant's conduct was neither a mistake nor an accident.
C.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.(fn1)
The Colorado Supreme Court recently construed C.R.E. 404(b) in the context of a civil trial.(fn2) In Boettcher & Co. v. Munson,(fn3) the court applied a four-part test to determine when evidence of prior acts may be admitted:
First, we must ask whether the proffered evidence relates to a material fact, i.e., a fact that is of consequence to the determination of the action. If it does, we proceed to the second question: is the evidence logically...
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