Fre 404b Mimic Drift
This trap appears as a wrong-answer choice in 1 active question. Spotting how it is built is the repair: read each example's “why it's attractive” before the “why it's wrong.”
Subject distribution
- Evidence1
Example wrong choices
19094_olive_wood_crucifix · EVIDENCE · Choice Binadmissible, because the prior conviction occurred more than 10 years before the trial.
Why it's attractive
FRE 609(b) is a rule about impeachment by prior conviction — it caps how old a prior can be when the prior is offered to attack a *witness's credibility*. The prosecution is not impeaching Daniel; it is using the prior substantively to prove identity. The 10-year rule is the wrong doctrinal frame.
Why it's wrong
FRE 609(b) is a rule about impeachment by prior conviction — it caps how old a prior can be when the prior is offered to attack a *witness's credibility*. The prosecution is not impeaching Daniel; it is using the prior substantively to prove identity. The 10-year rule is the wrong doctrinal frame.
19094_olive_wood_crucifix · EVIDENCE · Choice Cinadmissible, because evidence of previous conduct by a defendant may not be used against him or her.
Why it's attractive
The 'may not be used against him or her' framing is a flat absolute. The actual rule is layered: FRE 404(b)(1) bars propensity, but FRE 404(b)(2) lists non-propensity purposes for which prior-acts evidence is admissible — including identity. The prosecution is offering the prior for identity, which is a (b)(2) use, not a (b)(1) use.
Why it's wrong
The 'may not be used against him or her' framing is a flat absolute. The actual rule is layered: FRE 404(b)(1) bars propensity, but FRE 404(b)(2) lists non-propensity purposes for which prior-acts evidence is admissible — including identity. The prosecution is offering the prior for identity, which is a (b)(2) use, not a (b)(1) use.
19094_olive_wood_crucifix · EVIDENCE · Choice Dadmissible, as evidence of habit.
Why it's attractive
FRE 406 (habit; routine practice) lets in evidence of an actor's habit to prove conduct in conformity with the habit on a particular occasion — but only when the actor *regularly* responds to a *repeated* situation in the same way. Two events (one prior + one current) are not a pattern. The cleaner doctrine for the prosecution's offer is FRE 404(b)(2) identity / distinctive MO, not FRE 406 habit.
Why it's wrong
FRE 406 (habit; routine practice) lets in evidence of an actor's habit to prove conduct in conformity with the habit on a particular occasion — but only when the actor *regularly* responds to a *repeated* situation in the same way. Two events (one prior + one current) are not a pattern. The cleaner doctrine for the prosecution's offer is FRE 404(b)(2) identity / distinctive MO, not FRE 406 habit.
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