1.  A criminal defendant charged with heroin trafficking admits selling heroin to an undercover agent but claims to have been entrapped.  Under federal law the defense of entrapment is unavailable to a defendant who was "predisposed" to commit the offense.  The government seeks to call a rebuttal witness who will describe buying heroin from the defendant a month before the undercover purchase.  Is the testimony barred by F.R.E. 404(a)?

2.  A civil defendant, sued in federal court for wrongful death, claims he shot the victim in self-defense.  In order to support his testimony that the victim attacked him, may the defendant introduce evidence that the victim had an explosive temper?  In order to support his testimony that he reasonably feared for his life, may the defendant introduce evidence that the victim had a reputation for brutality?

3.  A criminal defendant charged with murder testifies that he shot the victim only after the victim lunged at him with a knife.  May the prosecution introduce evidence of the victim's peaceful character?  May the prosecution introduce evidence of the defendant's violent character?

4.  A criminal defendant charged with murder claims self-defense and introduces evidence that the victim was prone to violence.  May the prosecution introduce evidence of the victim's peaceful character?  May the prosecution introduce evidence of the defendant's violent character?

5.  In an extortion prosecution, the government proves the defendant made vaguely menacing statements to the victim.  In order to show that the defendant intended the statements as threats of physical harm, and that the statements put the victim in reasonable fear for his safety, may the government prove that the defendant has a well known proclivity toward violence?

1.  May a criminal defendant charged with tax evasion call his sister to testify that she thinks the defendant is thoroughly honest?  May he call a neighbor to testify that he has a reputation as ethical and law-abiding?  May he call a police officer to testify that the defendant turned in an expensive watch he found on the street?  May the defendant himself testify about turning in the watch?

2.  A criminal defendant charged with murder calls his minister, who testifies that the defendant is "gentle" and "wouldn't hurt anyone."  Can the prosecution call a rebuttal witness who will testify that the defendant attacked him in a supermarket checkout line a year before the killing?  Can the prosecutor ask the minister on cross-examination, "Are you aware that the defendant attacked someone in a supermarket checkout line?"  Can the prosecutor ask the minister, "Have you heard that the defendant attacked someone in a supermarket checkout line?"

3.  Henry Jumpertz was acquitted in 1859 of the murder of his mistress, Sophie Werner.  Jumpertz claimed Werner had killed herself, and he "offered the testimony of witness suggesting that Sophie had suicidal tendencies and had earlier attempted suicide several times."  See Jennifer L. Mnookin, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 Va. L. Rev. 1723, 1748-1751 (2001).  Should this evidence have been admitted?

1.  On June 30, 1915, George Joseph Smith was convicted in London of murdering Bessie Mundy.  Three years earlier Mundy had married Smith (who unbeknownst to her was already married), had executed a will leaving him all her property, and then had drowned in her bath.  Smith claimed the drowning had been accidental, but at trial the prosecution proved that, following Mundy's death, two other women had died in their baths after going through marriage ceremonies with Smith and making out wills in his favor.  The introduction of this evidence was the principal issue on appeal:

Mr. Marshall Hall carried the appeal before [Lord Chief] Justice Darling and his brother judges on July 29, 1915.  "All I say is 'not guilty'," he told the Court.  "Until the prosecution has proved this death was not by accident they cannot proceed."  He contended that the evidence of the other two deaths should never have been admitted, and that without it there was not a prima facie case to go to the jury.
      "Why, after all, can't lawyers act as sensible people?" demanded Mr. Justice Darling.  That remark was typical of him.  His practical common sense cut right through legal quibbles and got down to the true basis of true justice.
      "It would be difficult to believe," persisted counsel, "that the same number could come up on a roulette table five times in succession, but if it happened you would not be entitled to convict the croupier as a dishonest man."
      "If I saw it happen," observed the Lord Chief Justice, "and the same people were at the table all the time I should grow suspicious."
      After the three judges had consulted together for nearly half an hour the Lord Chief Justice delivered the judgment.  The Court had decided that there was a prima facie case on the death of Bessie Mundy, without taking the other deaths into account at all.  Therefore, they upheld Mr. Justice Scutton's decision to admit the evidence. . . .  The appeal was dismissed.  George Joseph Smith was executed without having confessed on August 13, 1915.

Dudley Barker, Lord Darling's Famous Cases 82 (1936); see Rex v. Smith, 11 Crim. App. 229, 84 K.B. 2153, [1914-15] All E.R. 262 (1915).  [Click here for more about the case.]
      Would the evidence of the other deaths be admissible under the Federal Rules of Evidence?  What if without that evidence there was no prima facie case—i.e., what if the proof regarding Mundy's death, standing alone, would not allow a rational jury to find Smith guilty of murder?

2.  A Nevada jury found Horace Tucker guilty of murdering Omar Evans, who was found shot to death on Tucker's couch in October 1963.  Tucker claimed that he had fallen asleep and woke up to find Evans dead.  At trial the prosecution proved that in 1957 another man, Earl Kaylor, had been found shot to death on Tucker's floor; on that occasion, too, Tucker claimed that he had been sleeping and awoke to find the corpse.  Both times Tucker appeared to the police to have been drinking.  The Nevada Supreme Court reversed Tucker's conviction, ruling that the trial judge should have excluded evidence of the 1957 death:

There is nothing in this record to establish that Tucker killed Kaylor.  Anonymous crimes can have no relevance in deciding whether the defendant committed the crime with which he is charged.  Kaylor's assailant remains unknown.  A fortiori, evidence of that crime cannot be received in the trial for the murder of Evans. . . .  Here there was only conjecture and suspicion, aroused by the fact that Kaylor was found dead in Tucker's home. . . .  [B]efore evidence of a collateral offense is admissible for any purpose, the prosecution must first establish by plain, clear and convincing evidence, that the defendant committed that offense. . . .  Fundamental fairness demands this standard in order to preclude verdicts which might otherwise rest on false assumptions.

Tucker v. State, 412 P.2d 970, 972 (Nev. 1966).

      Would the result be the same under the Federal Rules of Evidence?

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