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22. This evidence should be
A defendant was charged with attempted murder of a victim in a sniping incident in which the defendant allegedly shot at the victim from a bush as the victim drove his car along an expressway. The prosecutor offers evidence that seven years earlier the defendant had fired a shotgun into a woman's house and that the defendant had once pointed a handgun at another driver while driving on the street.
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B is correct. The general rule is that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Fed. R. Evid. 404(b). The evidence the prosecution is seeking to admit is being offered only to show the defendant's bad character and that he was acting in line with that bad character. Therefore, the evidence should be excluded as improper character evidence.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The defendant has not testified, which means there is no opportunity to elicit the evidence on cross-examination. In addition, even if the defendant were to take the stand, the evidence cannot be inquired into on cross-examination because only specific incidents probative on the issue of truthfulness or untruthfulness can be asked of the witness. That is not the case here.
C is incorrect. When the defendant has not «opened the door» to the issue of his character regarding peacefulness or violence, any evidence introduced by the prosecution of the defendant's «prior bad acts» is inadmissible to show action in conformity therewith.
D is incorrect. Although otherwise inadmissible character evidence may be admissible to prove identity, plan, or motive, none of the incidents the prosecution is seeking to introduce is relevant to any of those issues. There are no common elements between the prior crimes and the current crime that would be relevant to the issue of identity, plan, or motive. The prosecution is seeking to introduce the other incidents to show the defendant's poor character, and the evidence of those incidents should be excluded.