Opinion Includes Useful Language for Limiting Government's Prior Bad Acts Evidence

United States v. Tapaha, 2018 WL 2647028 (June 5, 2018) (NM): Tapaha was convicted of assaulting her boyfriend with a truck. On appeal she argued that the district court violated her constitutional rights to confrontation and to present a defense. Three witnesses would have detailed the history of abuse Tapaha suffered at the hands of her boyfriend. This history also would have been described during cross-examination of the boyfriend. This evidence, Tapaha she said, was essential to her claim that her fear of harm was reasonable and that she acted in self-defense. The panel rejected Tapaha’s arguments. But its conclusions may be beneficial to you in future cases.

First, the panel found the district court properly excluded some of the boyfriend’s testimony because it was speculative. He admitted he was too drunk to remember being hit or to know how much of a threat he was to Tapaha. Citing Fed.R.Evid. 602 and 701, the panel said that when a witness “lacks any recollection of the incident”, testimony about the incident or the accused’s state of mind is irrelevant. This is so because that testimony is not based on personal knowledge. In a case where the complaining witness was too intoxicated to remember anything, this ruling can help you restrict the testimony.

Second, the panel said the testimony of the three witnesses would have been cumulative to other evidence Tapaha presented. Tapaha offered it as reverse Fed.R.Evid. 404(b) evidence and as proof of a specific character trait allowed by Rule 405. The panel found the testimony “would not have added anything significant to the testimony already admitted.” Additionally, this evidence would not have bolstered Tapaha’s “weak” self-defense claim. When the government tries to present numerous incidents of misconduct using Fed.R.Evid. 404(b) or 405, the panel’s ruling here may help you limit that evidence.