Posted: May 8, 2025
Rules of Evidence – Comment Period Closed June 22, 2025
URE0404. Character evidence; crimes or other acts. Amend. The proposed amendments to the text of the rule are technical rather than substantive in nature. Additionally, a proposed new advisory committee note clarifies that consideration of the Shickles factors is no longer mandatory, but that they may be relevant and properly considered depending on the facts and circumstances of the case.
URE0408. Compromise offers and negotiations. Amend. Proposed amendments to the text of this rule are likewise technical rather than substantive. A proposed new advisory committee note observes that the rule differs from its federal counterpart.
URE0510. Miscellaneous matters. Amend. Proposed amendments to the text of the rule are technical only. It is also proposed that a reference be added to recent legislation substantively amending this rule.
The new committee note for rule 404 should also state that one of the Shickles factors–overwhelming hostility–is never appropriate to consider. See State v. Cuttler, 2015 UT 95, ¶ 20, 367 P.3d 981 (“Since the overmastering hostility factor under Shickles is at best judicial gloss and at worst a substitute test for evidence’s admissibility under rule 403, we now make clear that it is inappropriate for a court to consider the overmastering hostility factor in a rule 403 analysis.”).
The comment to Rule 404 provides that the Shickles factors may be considered where appropriate.
But one of the Shickles factors is whether the other act evidence would lead the jury to “overmastering hostility.” And in State v. Cutler, 2015 UT 95, the Utah Supreme Court held that it is not appropriate for the district court to consider this factor in a Rule 403 analysis.
The holding is in paragraph 20 which reads:
¶ 20 Finally, it is inappropriate for a district court to ever consider whether evidence will lead a jury to “overmastering hostility.” The language of rule 403 requires only that evidence not lead to unfair prejudice. Overmastering hostility is both a stricter and looser metric by which to judge evidence under rule 403. Evidence may lead to prejudice in ways other than by rousing a jury to overmastering hostility. Also, overmastering hostility is much stronger language than the “unfair” language actually used in rule 403. Since the overmastering hostility factor under Shickles is at best judicial gloss and at worst a substitute test for evidence’s admissibility under rule 403, we now make clear that *987 it is inappropriate for a court to consider the overmastering hostility factor in a rule 403 analysis.
The comment to Rule 404 should be amended to reflect that this Shickles factor should not be considered.