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Prior Bad Act and Gang Evidence

New SC Court of Appeals case, Johnson v. State, on gang evidence and 404(b). This case also presents some somewhat new evidentiary issues.

First, the court says that evidence of defendant’s gang involvement is a prior bad act:

Second, the court holds that the gang evidence falls under an 404(b) exception for motive and/or identity. (There has to be more than mere membership to be admissible)

Two evidentiary issues the court discussed: 1. Prior bad act evidence has an exhaustive list of exceptions (which is different than its Federal counterpart).

2. Rule 611 can be used to limit how gang evidence is presented to jury. I believe this is the first case since State v. Cross that cites SCRE 611 with regard to control the presentation of evidence.


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