29 Nov 2017 Prior bad acts in the news – how would they be handled in court?
For several weeks the news has included allegations of misconduct and bad acts by leading people in Hollywood, elected representatives in Washington DC, and others. I believe that news of past bad acts and misconduct will continue.
The allegations and alleged circumstances are disturbing, very disturbing, to say the least.
Of course, there are facts, documents, testimony and other evidence that we don’t know, and that haven’t been explained. But the allegations are in the court of public opinion and social media, so everyone can reach their own opinions based on what is communicated.
In court every defendant has the right to defend himself or herself, and that is the way it must be. There is a general presumption of innocence, but that presumption is not always true in civil cases where the burden of proof can sometimes be shifted, such as if there is a fiduciary or trusting or confidential relationship.
In a lawsuit the issue can arise about how to handle prior bad acts or actions by the accused? Prior bad acts or actions, if proven to be true, can be very damming. The judge decides whether prior bad acts or actions of the accused can be admitted into evidence in a lawsuit about current new charges. This can be a difficult decision.
Proven prior bad acts or actions of the accused generally can be admitted into evidence to prove a pattern or practice of the accused or that the accused knew how to do something, but only if the prior bad acts or actions are sufficiently similar in type or nature to the type of wrongful act or conduct that is at issue in the current lawsuit.
But proven prior bad acts or conduct of the accused also can be held to be inadmissible as evidence in a court of law if their relevance or usefulness with respect to the current charges or allegations and possible guilt thereof is outweighed by the prejudice to the accused on the current new charges. Just because it is established that the accused committed a wrong of a similar type or nature in the past does not prove that the accused committed the current new alleged wrongful act, but it can establish that the accused had a pattern or practice of committing or that the accused knew how to commit the type of wrongful act or action that is at issue in the current lawsuit. It still must be established by admissible evidence that the accused committed the current charges or allegations – prior similar bad acts or actions alone will not suffice to establish guilt or liability on the current new alleged wrongful act. This can be a complicated issue.
That’s all for now. I’m David Tate, and I’m a California litigation attorney, and I also handle governance and risk management. You need to consult with an attorney or appropriate professional about your situation. This blog post is not an advertisement or solicitation for services inside or outside of California.
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