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If the proposed evidence does not discredit the accused, it is admissible unless it triggers the application of some other exclusionary rule of evidence. Where the other conduct is sufficiently discreditable that it may prejudice the trier of fact against the accused, the similar fact evidence rule applies and the probative value of the evidence of the prior discreditable conduct must outweigh its prejudicial effect before it will be admitted.
Prejudice, in this context, does not mean that the evidence might increase the chances of conviction, but rather that the evidence might be improperly used by the trier of fact. It is the unfair, not the unfortunate, effect of the evidence which is to be guarded against.
In assessing the probative value of the proposed evidence, consideration should be given to such matters as: the strength of the evidence; the extent to which the proposed evidence supports the inference sought to be made from it (a factor which will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and the extent to which the matters it tends to prove are at issue in the proceedings.
In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as: how discreditable it is; the extent to which it may support an inference of guilt based solely on bad character; the extent to which it may confuse issues; and the accused's ability to respond to it.
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