In a civil trial for wrongful death, the plaintiff (the widow of a man killed by a swinging crane), wanted to present evidence that the defendant (the crane operator who swung the crane at the deceased) had previously swung cranes at other pedestrians. The plaintiff argued to the judge the applicable rule of evidence regarding prior conduct being used for certain permitted purposes. The rule before December 1, 2011, provided that the defendant's prior conduct may be used to show absence of mistake, a pattern, or otherwise providing that admitting the prior conduct would not be very prejudicial. The restyled rule provides that ;the person's prior conduct may be admitted to show absence of mistake or a pattern providing that the prior conduct would not be unfairly prejudicial.

The plaintiff proffered four prior incidents similar to the defen- dant's conduct in the instant litigation. The defendant argued that to admit any, some, or all would be unfairly prejudicial. The plaintiff argued that "unfairly" was not the test but rather that the test was very prejudicial. What should the judge rule? 

The plaintiff argued that the defendant's prior crane swinging demonstrated both an absence of mistake and a pattern. The defendant argued that he had an involuntary ticks that caused the crane to swing and because the new rule omitted the words or otherwise his conduct should be precluded. What should the judge do?