McKinney v. Brandywine Court Condominium Council, Inc
In McKinney v. Brandywine Court Condominium Council, Inc., 830 A.2d 411, 412-13, (Del. Super. 2003), a slip and fall case, Judge Witham stated:
"If evidence of either a prior or subsequent bad act is offered for a purpose permitted by D.R.E. 404(b), the trial judge must engage in the balancing test required under D.R.E. 403:
(1) the evidence of other crimes must be material to an issue or ultimate fact in dispute in the case. If the State elects to present such evidence in its case-in-chief it must demonstrate the existence, or reasonable anticipation, of such a material issue.
(2) the evidence of other crimes must be introduced for a purpose sanctioned by D.R.E. 404(b) or any purpose not inconsistent with the basic prohibition against evidence of bad character or criminal disposition.
(3) The other crimes must be proved by evidence which is "plain, clear and conclusive."
(4) The other crimes or bad acts must not be too remote in time from the charged offense.
(5) The Court must balance the probative value of such evidence against its unfairly prejudicial effect, as required by D.R.E. 403. (6) Because such evidence is admitted for a limited purpose, the jury should be instructed concerning the purpose for its admission as required by D.R.E. 105."