The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WAYLAND COLLINS et al. CIVIL ACTION
VERSUS NO. 18-7465
JOHN C. BENTON d/b/a Q&M MOTOR SECTION: “G”
TRANSPORTS et al.
ORDER AND REASONS FOR ADDING JURY INSTRUCTION
After review of Louis Fey’s (“Fey”) testimony and the opinions he rendered during trial
on November 22, 2021, the Court became concerned about certain information that Fey
referenced in explaining his conclusions—namely, indictments and/or arrests of individuals who
are neither witnesses or parties in this case.
As a general rule, evidence of an indictment is not admissible as character evidence
against a party or witness. Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any
other crime, wrong, or act is not admissible to prove a persons’ character in order to show that on
a particular occasion the person acted in accordance with the character.”1 However, pursuant to
Federal Rule of Evidence 404(b)(2), evidence of a crime “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identify, absence of
mistake, or lack of accident.”2 “[T]he general rule of exclusion in Rule 404(b) only excludes
evidence of other crimes when offered to prove the conduct of a person by resort to an inference
1 Fed. R. Evid. 404(b)(1).
2 Fed. R. Evid. 404(b)(2).
as to his character.”
Indictments and arrests are “other bad acts” under Rule 404(b). However, the testimony
and opinions provided by Fey that reference mere arrests or indictments were not referring to the
character of a party or witness, and thus were not being used in a manner prohibited by Rule
404(b). Therefore, the exclusions of FRE 404(b) do not apply. Moreover, Fey stated that whether
or not someone 1s indicted does not impact a decision to deny a claim because an accident may
have been staged. Nevertheless, indictments have been mentioned during the course of trial.
The policy behind Federal Rule of Evidence 404 is not implicated here considering this
information is more remote to the facts of this case than if it were used against a party or witness.
Moreover, Fey testified that it was not necessary for a person to be indicted or convicted to
conclude that an accident was staged. To eliminate any confusion that reference to indictments
and arrests may have created for the jury, the Court will instruct the jury that an arrest or
indictment is only an accusation against someone and 1s not indicative of guilt.
NEW ORLEANS, LOUISIANA, this 23rd day of November, 2021.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
3 United States v. Ebron, 683 F.3d 105, 131-32 (5th Cir. 2012).