Friday, July 4, 2008
The opinion of the Eighth Circuit in United States v. Gregg, 451 F.3d 930 (8th Cir. 2006), provides a nice opportunity to explain the oft misunderstood Federal Rule of Evidence 405(b). Here is a (very) condensed recitation of the facts in Gregg:
On the evening of July 3, 2004, and into the morning of July 4, 2004, James Allen Gregg, a twenty-four year old veteran who served in Iraq, was spending time with friends on the Crow Creek Reservation, including James Fallis and Jerrod Fallis, twin brothers of Indian heritage, whom he had known since the fourth grade. Gregg and others, including the Fallis brothers, had been drinking most of the evening at a bar, a residential trailer, and then finally, at a mint farm. While at the mint farm, Gregg expressed interest in a woman, but she spurned him to spend time with Jerrod. After receiving this rejection, Gregg and his friend Jacob Big Eagle drove around the reservation, and, upon their return, they found the woman with Jerrod in James's new car, leaving the mint farm. According to witnesses, Gregg accelerated, spraying gravel onto James's new car before returning to the mint farm to rejoin the drinking party. When Jerrod returned, James and he confronted Gregg about the car incident, and there was a verbal and physical altercation between James and Gregg
After the fight, everyone went their separate ways, but Gregg later drove to James' trailer to, according to him, apologize to James. Upon Gregg's arrival, James came out of the trailer, stating, “You come back for more ... You want to fight?" According to Gregg, James then tried to pull him out of his truck. Other witnesses, however, alleged that James opened the door, but then closed it immediately. During the altercation, Gregg grabbed a pistol in his car and pointed it at James, telling him to back away. Gregg claimed that James responded by saying, “You want to fuck with guns? I got guns!” and then ran toward his truck. Other witnesses, however, claimed that they heard James say the first sentence, but they did not hear him say he had guns. As James was running away from the truck, Gregg shot at James nine times, hitting him five times in the back and wounding him fatally. After Gregg's trial, a jury convicted him of second degree murder and discharging a firearm during a crime of violence.
Gregg then appealed, claiming, inter alia, that the trial court erred in precluding him from introducing prior acts of violence by James to prove that James was the aggressor in the altercation and that he was acting in self-defense. The Eighth Circuit began by noting that pursuant to Federal Rule of Evidence 404(a)(2), Gregg could introduce evidence of James' violent character to prove that he was the aggressor in the altercation.
The court, however, noted that in most cases, the only evidence of James' violent character that Gregg could introduce was, pursuant to Federal Rule of Evidence 405(a), opinion and reputation evidence, not specific act evidence. It did note that, pursuant to 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." The Eighth Circuit, however, found that a self-defense case is not such a case. Why?
Well, this is an issue that causes a lot of people a lot of problems, and I think that the reason is that it is counterintuitive. And the reason is that character is an essential element of a charge, claim, or defense only in cases where a party is not using character evidence to prove that the opposing party acted in conformity with their character at the time of the alleged crime.
At first, this might sound confusing, but let's look at the two examples cited by the Advisory Committee to see why it makes sense. According to the Advisory Committee's Note to Rule 404(a), "[c]haracter may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.' Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver."
While of course it is no longer a crime, English common law defined the crime of seduction as a felony committed "when a male person induced an unmarried female of previously chaste character to engage in an act of sexual intercourse on a promise of marriage." So, if the defendant used past acts of sexual intercourse by the alleged victim in such a case, it would not be to prove that she acted in conformity with her "loose" character and engaged in intercourse with him (indeed, his defense might be that there was no sexual act); instead, it would be to prove that she was not chaste and could not be a victim under the statute.
Meanwhile, in the negligent entrustment scenario cited by the Advisory Committee, let's say that the plaintiff claimed that the driver had 5 DUIs. The plaintiff would not be using these past acts to prove that the driver was driving drunk at the time of the accident (this would be precluded under the character evidence rules); instead, he would be using those acts to prove that the owner of the car was or should have been aware of the driver's past history and thus negligently entrusted his car to the driver (and the same applies to the negligent hiring/supervision scenario).
Conversely, in a self-defense case, the fact that the alleged victim committed past acts of violence has no relevance except to prove (1) that the alleged victim acted in conformity with his violent past at the time of the alleged crime, which is prohibited under the Rules, or (2) to prove that the defendant knew about the alleged victim's past and had reason to fear him, an argument which the court rejected because Gregg failed to prove that he had such knowledge.