EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, September 7, 2010

Essential Reading: Tenth Circuit Finds District Court Properly Excluded Character Evidence In Campaign Contributions Appeal

Federal Rule of Evidence 404(a)(1), the mercy rule, 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:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

That said, evidence admissible under Rule 404(a)(1) is still subject to Federal Rule of Evidence 405(a), which 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.

In other words, if a defendant is charged related to him accepting questionable campaign contributions, he could have a character witnesses testify that, in his opinion, the defendant is honest or that the defendant has a reputation for being honest. But as the recent opinion of the Tenth Circuit in United States v. McMahan, 2010 WL 3446852 (10th Cir. 2010), makes clear, the witness could not testify that the defendant refused to accept questionable campaign contributions in the past.

In McMahan, Jeff McMahan, the former Oklahoma State Auditor and Inspector, was convicted of one count of conspiracy and two counts of violating the Travel Act. These charges stemmed from an allegedly improper relationship between McMahan and Scott and Steve Phipps, who owned several abstract companies. It was alleged that the Phipps gave McMahan financial assistance and gifts in exchange for favors. For example, McMahan allegedly delayed an application by John Callaham to open an abstract company in Idabel, Oklahoma, that would have competed with one of their businesses.

During trial, McMahan attempted to elicit testimony from witnesses regarding specific instances when, inter alia, he refused to accept a questionable campaign contribution, and did not provide favorable treatment to Phipps. Each time, the district court...determined that although McMahan was entitled to present character evidence, he could not do so by offering evidence of specific instances of his conduct.

After he was convicted, McMahan appealed, claiming, inter alia, that these rulings were erroneous. The Tenth Circuit disagreed, finding that while McMahan was allowed to present character evidence under Federal Rule of Evidence 404(a)(1), he could only present opinion and/or reputation testimony under Federal Rule of Evidence 405(a).

The Tenth Circuit did note that Federal Rule of Evidence 405(b) provides that

In 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 court, however, found that McMahan's character was not an essential element of any charge or defense. In other words, McMahan could generally be an honest man who took improper campaign contributions in this case or a generally dishonest man who acted honestly this one time. In other words, this was not a case like an action for negligent hiring where the plaintiff has to prove that the employee who was negligently hired was an alcoholic and that the defendant should have known this fact and not hired him. And, this was not a case where the defendant claimed entrapment, raising the issue of whether the defendant was predisposed to commit the subject crime.



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