MAKIA SMITH v. BALTIMORE CITY POLICE DEPARTMENT et al
US Court of Appeals for the 4th Circuit, Thacker, Oct. 27, 2016,
Character Evidence – FRE 404 – Evidence of prior arrests unrelated to dispute in wrongful arrest case was inadmissible when actually used to show character and propensity rather than the claimed use related to damages

When walking a fine line, it’s important to do so with care. Here the defense was not careful with regard to how they were admitting this narrowly admissible evidence.

Test of admissibility of character evidence:
(1) the prior-act evidence must be relevant to an issue other than character, such as intent;
(2) it must be necessary to prove an element of the [claim];
(3) it must be reliable; and
(4) its probative value must not be substantially outweighed by its prejudicial nature

“admission of evidence of other bad acts to assist the jury in measuring the extent of damages is a legitimate, non-character-based use of such evidence.” But that evidence still must have “probative value on the question of . . . damages” in the case at hand.

In the instant case, evidence of prior arrests was “being used to show character and propensity, rather than to demonstrate the extent of her damages.”

Judge’s limiting direction to the jury was insufficient, as it did not direct the jury to limit consideration of prior arrest to damages and did not direct the jury not to consider the evidence with regard to character or propensity.
(The judge directed, in part, that “[i]f the plaintiff was arrested and the charges were dismissed, which is, I think, what happened, you can’t use an arrest, and it’s essential that you understand that. You cannot use the mere fact of an arrest to judge the plaintiff’s credibility. That is absolutely essential.”

Not harmless error where the case was a close one.