Character Assassination, Take 2: The Mercy Rule & The Same Trait Requirement
Yesterday’s post dealt with an interesting aspect of the propensity character evidence proscription and the so-called “mercy rule.” Federal Rule of Evidence 404(a) states in relevant part:
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait….
As Federal Rule of Evidence 404(a)(2)(B)(ii) makes clear, when the defendant attacks the character of the alleged victim for a pertinent character trait, the prosecution may respond by offering “evidence of the defendant’s same trait.” Therefore, if a defendant presents evidence that his alleged victim was dishonest, the prosecution could respond by presenting evidence that the defendant is a dishonest person but could not present evidence that the defendant is a violent person.
The clear implication from Federal Rule of Evidence 404(a)(2)(B)(ii) is that the same deal applies for Federal Rule of Evidence 404(a)(2)(A). In other words, if a defendant presents evidence that he is an honest person, the prosecution could respond by presenting evidence that he is a dishonest person but could not respond by presenting evidence that he is a violent person. In this post, I will give two examples of what I mean, one hypothetical and one actual.
First, the hypothetical: This one comes from a comment I made responding to another comment in yesterday’s post:
Dennis is on trial for murdering Vince. The allegation is that Dennis called Vince and lied to Vince about his TV being broken and asking him whether he could come over and fix it. While Vince was at Dennis’ house, Dennis allegedly shot and killed him. Dennis, meanwhile, claims that his TV was broken and that Vince attacked him, causing him to shot Vince in self-defense.
At trial, Dennis presents character evidence concerning his character for honesty. Should the prosecution be able to respond with evidence concerning Dennis’ character for violence?
The answer should be “no.” In this case, the prosecution would not be rebutting Dennis’ evidence that he is an honest person.
The second example comes from my forthcoming eLangdell chapter on evidence and deals with a slightly different fact pattern:
Thereare 2 limitations on cross-examination regarding specific instances of conductunder Rule405(a): First, the party asking thequestion(s) must have a good faith factual basis to believe that the defendantor victim committed the instances of conduct. Second, the incidents must berelevant to the character traits of the defendant or victim that are testifiedto by the character witness. UnitedStates v. Dillard,2009 WL 4034812 (5th Cir. 2009). For instance, in Moorev. State,143 S.W.3d 305 (Tex.App.-Waco 2004), a defendant charged with retaliationagainst a public servant presented evidence of his good character, which thenopened the door for the prosecution to have character witnesses testify thatthe public servant had a good reputation for honesty. In addressing thedefendant’s appeal after his conviction, the Court of Appeals of Texas, Waco,found that the trial court properly allowed the defendant to ask thesecharacter witnesses about the public servant’s prior theft convictions andproperly did not allow him to askthem about the public servant’s DUI conviction because it was not relevant tohis truthful character. See id.
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