Monday, July 26, 2010
Bad Reputation: Alaska Case Reveals Differences Between Federal And Alaska Rules Of Evidence On Character/Reputation Evidence
Federal Rule of Evidence 404(a)(2) provides that
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....
In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
Meanwhile, Alaska Rule of Evidence 404(a)(2) provides that
Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor....
The recent opinion of the Court of Appeals of Alaska in Proctor v. State, 2010 WL 2870106 (Alaska App. 2010), reveals the important difference between these rules and a possible difference between Federal Rule of Evidence 405(a) and Alaska Rule of Evidence 405(a) regarding the admissibility of reputation evidence.
In Proctor, Bradley Proctor was convicted of two counts of assault after a jury trial in which he claimed self-defense. Proctor did not present any evidence concerning the character of the alleged victim.
Midway through the presentation of the State's case, Proctor's attorney advised the court that the State intended to call correctional officers to testify about Proctor's propensity for violence. Defense counsel objected to this proposed testimony, which would be based on four or five incidents in which Proctor had been punished for assault or fighting during his incarceration prior to trial....
Proctor objected again before the officers were called to the stand on the basis that the officers did not have a proper knowledge of Proctor's reputation when he was out of custody. He argued that prison is a unique atmosphere and that the officers' knowledge of Proctor's conduct in custody would not be an accurate foundation for testimony about his reputation.
The judge stated that he understood Proctor to be arguing that opinion testimony by a prison official is never admissible because people behave differently in prison. The judge overruled this objection, explaining that Proctor could explore the witnesses' limited knowledge on cross-examination.
After Proctor was convicted, he appealed, claiming, inter alia, that the trial court erred by allowing the correctional officers to render this testimony. The Court of Appeals of Alaska disagreed, first finding that character evidence was admissible under Alaska Rule of Evidence 404(a)(2) because Proctor claimed self-defense. Undoubtedly, the court was correct, but it is equally correct that character evidence would have been inadmissible against Proctor if Federal Rule of Evidence 404(a)(2) applied.
Under the federal rule, a defendant's claim of self-defense does not open the door for the admission of character evidence, except in a homicide case. Conversely, under the Alaska rule, a defendant's claim of self-defense opens the door for the admission of character evidence in any case. I prefer the federal rule (minus the homicide exception. It is well established that character evidence is a Pandora's box that defendants can keep closed or open by deciding to inject the issue of character into their trials. But how does a defendant open the box merely by claiming self-defense? A defendant can claim that the alleged victim attacked him, but he is not necessarily claiming that the victim is a generally violent person.
Second, the Court of Appeals of Alaska noted that courts have split on the issue of whether evidence of a defendant's reputation in prison is admissible. The court, though, found that it did not have to resolve this issue because the scope of Alaska Rule of Evidence 405(a) is broader than the scope of Federal Rule of Evidence 405(a) and most state counterparts.
Federal Rule of Evidence 405(a) provides that
In 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. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Meanwhile, Alaska Rule of Evidence 405(a) provides that
In 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 in any community or group in which the individual habitually associated or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
And, as the Court of Appeals of Alaska noted, the Commentary to Alaska Rule of Evidence 405(a) notes that
The Federal Rule, on which this Rule is modeled, does not indicate the scope of reputation evidence. This rule fills a gap left in the Federal Rule by clearly stating that reputation evidence is not confined to the community in which the defendant lives; reputation where the defendant works, goes to school or in a group with whom the defendant habitually associates will suffice.
I agree with the court that the Alaska rule fills in a gap left by the federal rule, but I also note that federal courts generally have had no problem finding that reputation evidence is not confined to the community in which the defendant lives. See, e.g., Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 101 (3rd Cir. 1999) (finding that a workplace may constitute a "community" for reputation evidence purposes). Thus, I'm not sure that Alaska Rule of Evidence 405(a) really is broader than Federal Rule of Evidence 405(a) and most state counterparts.
But that's not really the point. The courts excluding evidence of defendants' reputations in prison did not exclude such evidence because it failed to qualify as reputation evidence. They excluded it for the reason argued by Proctor: People act differently in prison than they act in the "real" world. In other words, Proctor's argument really was an argument under Rule 403 that the probative value of this reputation evidence was substantially outweighed by the danger of unfair prejudice. And, I would have liked to have seen the court engage with this argument a bit more.