Character Evidence - Federal Public Defender, EDNC

Report
Evidence
Prof. William A. Woodruff
Federal Criminal Practice Seminar
Nov 2, 2012
Raleigh, NC
© 2012
“Character” evidence is admissible
in a criminal case when:
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Character is an “essential element of a
charge, claim or defense.” FRE 405(b)
The accused offers his own character as a
defense to the crime charged. FRE
404(a)(2)(A)
The accused offers the victim’s character
FRE 404(a)(2)(B); subject to FRE 412
In a homicide case the gov’t offers V’s
character for peacefulness to rebut D’s
claim that V was first aggressor. FRE
404(a)(2)(C)
“Character” evidence is admissible
in a criminal case when:
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The accused is charged with sexual
assault or child molestation. FRE 413-414
Impeach/rehabilitate a witness’ character
for truthfulness. FRE 404(a)(3); 608-609
“Character” as an essential
element
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The substantive law makes a trait of
character an essential element
Not a propensity use
Prove by specific acts, opinion, and/or
reputation. FRE 405
Jacobson v. U.S., 503 U.S. 540 (1992)(When
defendant claims entrapment, gov’t must prove
beyond reasonable doubt that defendant was
“predisposed to commit the criminal act prior to
first being approached by government agents.”)
“Character” of the accused
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Accused may offer a “pertinent trait” of
character as a defense, but gov’t can rebut.
FRE 404(a)(2)(A)
Prove by opinion and/or reputation, but not
specific acts. FRE 405(a)
US v MacDonald, 485 F. Supp. 1087, 1094
(EDNC 1979), aff’d 688 F.2d 224 (4th Cir. 1982)
excluding defense psychiatric testimony under
FRE 403 because “Numerous lay witnesses most
of whom were highly intelligent and articulate,
professional and business people, had already
testified to the defendant's character traits of
peacefulness, non-violence, rationality and
compassion for his fellow man.”
“Character” of the accused charged
with sexual assault or child
molestation
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FRE 413 & 414 allow prosecution to offer
specific acts to prove defendant’s propensity to
commit crime charged.
FRE 403 is still applicable, but the propensity
argument enhances the probative value, not the
prejudicial effect.
US v. Kelly, 510 F.3d 433, 438 (4th Cir.
2007)(While the prior conviction [for child rape]
was undoubtedly prejudicial to Kelly's defense, it
was not unfairly prejudicial. Rather, it was
prejudicial “for the same reason it is probative—
it tends to prove [the defendant's] propensity to
molest young children.”
“Character of the victim
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Accused can offer “pertinent trait” of
victim’s character, subject to FRE 412.
FRE 404(a)(2)(B)
Placing victim’s character in issue by
accused opens the door to same trait in
the accused. FRE 404(a)(2)(B)(ii)
Gov’t can offer victim’s character for
peacefulness in homicide case to rebut
claim that victim was first aggressor. FRE
404(a)(2)(C)
Prove character by reputation/opinion FRE
405.
“Character” of the victim
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US v. Drapeau, 644 F.3d 646 (8th Cir
2011)(404(a)(2)(B) permits accused to
offer a pertinent trait of victim’s character,
but specific acts are not admissible to
establish the character trait.)
“Character” of a witness
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FRE 404(a)(3) refers to FRE 607, 608, &
609 to regulate character of a witness
FRE 607: Any party can impeach any
witness
FRE 608(a): limited to character for
truthfulness or untruthfulness; character
for truthfulness only permitted if evidence
of untruthful character has been offered;
proof limited to reputation and/or opinion
“Character of a witness
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FRE 608(b): Specific acts of truthfulness
or untruthfulness not permitted. May, in
discretion of the court, inquire into specific
acts, other than convictions, probative of
truthfulness or untruthfulness on cross of
character witness.
FRE 609: Admits certain prior convictions
to attack character for truthfulness of a
witness.
Opening the Door to the
Criminal Defendant’s Character
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General Rule:
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Evidence of the defendant’s character is not
admissible to prove he acted in conformity with that
character trait on the day in questions unless:
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The defendant offers evidence of his own character (FRE
404(a)(2)(A))
The defendant offers evidence of the victim’s character (FRE
404(a)(2)(B))
The defendant is charged with sexual assault or child
molestation (FRE 413-414)
“Once a defendant has provided any relevant
[character] testimony through any witness…he has
‘offered’ [character] testimony….” Fannon v.
Johnston, 88 F.Supp. 2d 753 (E.D. Mich. 2000)
Inadvertently Opening the Door
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Opening Statement
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Opening statement is not evidence
Mentioning defendant’s good character in opening
statement is not offering evidence
Including claims of defendant’s good character in
opening statement when you do not intend to offer
such evidence is improper
But, it should not “open the door” to bad character
evidence from the government
But see, US v Inserra, 34 F.3d 83 (2d Cir. 1994)
Inadvertently Opening the Door
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Cross Examination
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Gov’t witness is actually favorable to
defendant
One of two scenarios:
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“Blurts out” statements about defendant’s good
character
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Object as non-responsive
Move to strike
Defense elicits statements about defendant’s good
character
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US v. Moore, 27 F.3d 969 (4th Cir. 1994); US v. Grady,
665 F.2d 831 (8th Cir. 1981)
Inadvertently Opening the Door
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Defendant’s Direct
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Defendant can inject his character by:
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Bolstering his baby-sitting alibi by claiming he was “deeply
devoted to his family and that he never left the child alone.”
US v. Dahlin, 734 F.2d 393 (8th Cir. 1984)
Denying he was “into the cocaine thing.” US v. Gaertner,
705 F.2d 210 (7th Cir. 1983)
Testifying to his career, personal history, family & business
ties, medical problems, personal philosophy and civil
contributions to negate criminal intent. US v. Adamson, 665
F.2d 649 (5th Cir. 1982)
Claiming he was “fanatic anti-drug individual.” US v.
Meachem, 799 F.2d 751 (Table), 1986 WL 17397 (4th Cir.
1986)
Inadvertently Opening the Door
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Other Defense Witnesses
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Intentionally elicit character trait on direct
Opens door
 Gov’t can rebut
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“Blurt out” good character testimony
Object as non-responsive
 Move to strike
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