Memorandum in Opposition to Defendant's Motion to Admit Evidence of Extramarital Affairs

Memorandum submitted by the Estate to oppose the State’s motion to have testimony regarding Dr. Samuel Sheppard’s extramarital affairs admitted into evidence. The Estate argues that testimony of Dr. Sheppard’s affairs should not be admitted because there is a high likelihood the jury would be prejudiced against him and decide his innocence based on his past infidelities as opposed to the evidence. Although the state believes it can bring in this evidence as part of its case in chief because Dr. Sheppard’s character was made an issue at trial, the Estate counters that the rule of evidence (Ohio R. Evid. 404(A)) upon which the State is relying does not allow this. The Estate contends that rule 404(a)(2) involves evidence of the character of a victim of a crime and has been used only in criminal cases. The Estate goes on to argue that the State may have been able to bring in this kind of evidence if it had objected to the character evidence of Dr. Sheppard at trial, but it failed to do so. The Estate further contends that this testimony is not admissible as “other acts” under Ohio R. Evid. 404(B), because Dr. Sheppard’s extramarital affairs are not “inextricably related to the crime.” Citing the trial court's opinion, the Estate posits that the inextricably related acts are those which are “closely related in time, kind, and purpose to act at issue,” and the state must first prove that Sheppard was motivated to kill his wife because of the affairs. Finally, the Estate argued that even if evidence linking Sheppard’s affairs to his motivation to kill Marilyn existed, its probative value must be balanced against the prejudicial effect it might have on the jury.