Thursday, May 15, 2008
The Essential Character: Fifth Circuit Excludes Specific Act Character Evidence In Self-Defense Case
The Fifth Circuit's recent opinion in United States v. Gulley, 2008 WL 1887305 (5th Cir. 2008), contains an important discussion of Federal Rule of Evidence 405(b), a Rule which has been the cause for much consternation. In Gulley, Arzell Gulley was charged and convicted of the murder of Daryl Brown and aiding and abetting in Brown's murder. The charges stemmed from a penitentiary fight among Gulley, Brown, and David Jackson, which left Brown dead. Brown's autopsy indicated that he had eleven knife wounds, with a single strike that pierced the upper lobe of his left lung and the pericardial sac of his aorta causing his death.
Gulley's defense at trial was self-defense, that Brown was the first aggressor. Gulley tried to prove this claim in part through admitting evidence of eight prior instances of violence committed by Brown, but the trial court excluded this evidence. After Gulley was convicted, he appealed to the Fifth Circuit.
The Fifth Circuit noted that it is well established that criminal defendants are entitled to present character evidence about a pertinent character trait of the accused (e.g., violence in a homicide case). Specifically, Federal Rule of Evidence 404(a)(2) provides in relevant part that "[i]n a criminal case...evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused" is admissible. Federal Rule of Evidence 405 then governs the methods of proof that can be used to prove the victim's character.
Under Federal Rule of Evidence 405(a), "[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." Specific instances of conduct can only be inquired into on cross-examination and cannot be proven by extrinsic evidence. On the other hand, under Federal Rule of Evidence 405(b), "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."
Gulley's argument on appeal was that he could introduce specific instances of Brown's violent acts under Federal Rule of Evidence 405(b) on the ground that character was an essential element at issue in this case because Brown's propensity for violence tended to indicate that he was the first aggressor. As support he cited the (pre-Federal Rules of Evidence) 1972 D.C. Circuit case, United States v. Burks, 470 F.2d 432, 434 (D.C. Cir. 1972), which held that "evidence of the deceased's violent character, including evidence of specific violent acts, is admissible where a claim of self-defense is raised."
The Fifth Circuit noted, however, that almost all courts in post-Rules cases have disagreed with the D.C. Circuit. The Fifth Circuit then agreed with this majority, finding that the plain language of Rule 405(b) limits the use of specific instances of conduct to prove essential elements of a charge or defense (such as in a defamation/libel/slander case). The Fifth Circuit found that "Brown's character was not an essential element of the self defense claim in the 'strict sense' because a self defense claim may be proven regardless of whether the victim has a violent or passive character." I think that the reasoning employed by the Fifth Circuit makes sense and thus agree with the majority position.