Tenth Circuit Asked Whether “Communicated Character” Evidence Triggers the Mercy Rule

Federal Rule of Evidence 404(a) states the following:

(a) Character Evidence.

(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; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

So, under Rule 404(a)(2)(B)(ii), imagine that Dana is on trial for criminal battery after striking Victoria. At trial, Dana could claim self-defense and call witnesses to testify that, in their opinion, Victoria is a violent person. This would then open the door to, inter alia, the prosecution calling witnesses witnesses to testify that, in their opinion, Dana is a violent person.

Beyond Rule 404(a), however, a criminal defendant can also introduce evidence of the victim’s bad character for violence under a theory called “communicated character.” Under this theory, a defendant can claim that they were aware of the victim’s bad character for violence at the time of the incident, placing the defendant is reasonable apprehension of the victim. By doing so, the defendant would be establishing her reasonable apprehension, not the victim’s bad character. 

So, if the defendant relies upon “communicated character,” does she open the door for bad character evidence being presented against her? That was the question asked to the Tenth Circuit in United States v. Redbird, 73 F.4th 789 (10th Cir. 2023).

The facts in Redbird were similar to the facts in my hypothetical, with the prosecution presenting bad character evidence about the defendant and the Tenth Circuit ultimately finding that the defendant had failed to preserve the issue for appellate review (and had failed to prove plain error).

That said, had the issue been preserved, I think the defendant would have been right. Rule 404(a)(2)(B)(ii) is only triggered by presenting propensity character evidence about the victim, i.e., evidence that the victim has a propensity to act violently and therefore likely acted in conformity with that propensity at the time of the crime charged. And, as noted, “communicated character” evidence is not evidence about the victim’s propensities but instead abou the defendant’s reasonable apprehension. Therefore, “communicated character” evidence should not trigger Rule 404(a)(2)(B)(ii).

-CM