EvidenceProf Blog

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

Tuesday, July 19, 2011

Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence

Back on Sunday, I posted an entry about how defendants seeking to present good character evidence about themselves under the "mercy rule" of Federal Rule of Evidence 404(a)(1) can only present reputation and/or opinion testimony under Federal Rule of Evidence 405(a) unless character is an essential element of his defense. As the recent opinion of the Eighth Circuit in United States v. Drapeau, 2011 WL 2652317 (8th Cir. 2011), makes clear, the same principle applies when defendant seek to present bad character evidence about victims under the "mercy rule" of Federal Rule of Evidence 404(a)(2).

In Drapeau, Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a federal officer resulting in bodily injury based upon an attack against Bureau of Indian Affairs Officer Marlin Robert Mousseau, Jr. At trial, Drapeau sought to present into evidence

seven tribal resolutions and an unsigned memo to United States Senator John Thune. The first resolution was written by the Nebraska Winnebago Tribe in 2005, describing Mousseau's misconduct and requesting his permanent removal as a police officer from the Winnebago Law Enforcement Services Department. Thereafter, Mousseau transferred to the Crow Creek BIA duty station, whereupon the Crow Creek Sioux Tribal Council adopted the other six resolutions and memo in response to numerous complaints against Mousseau and requested his removal from the Crow Creek Sioux Indian Reservation. In the memo to Senator Thune, a Crow Creek Sioux Tribe civil rights group requested an internal investigation of Mousseau and the police department. During the pretrial conference, the district court preliminarily denied the 2005 Winnebago resolution based on relevancy and hearsay and the last two Crow Creek resolutions because they postdated the incident, and stated that the remaining four resolutions might become admissible if Drapeau testified that he was aware of them.

The district court deemed this evidence inadmissible, and the Eight Circuit agreed with this decision on appeal. The Eighth Circuit acknowledged that Drapeau could present bad character evidence about Mousseau pursuant to Federal Rule of Evidence 404(a)(2), which 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...[i]n 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....

But the problem for Deapeau was that Federal Rule of Evidence 405(a) only allows for the admission of reputation and/or opinion testimony, and "the tribal resolutions and memo were not in the form of witness testimony...." Moreover, Mousseau's character was not an essential element of Drapeau's defense, meaning that the evidence was not admissible under Federal Rule of Evidence 405(b), and the evidence established that Drapeau had no prior knowledge of the acts references in the resolution and memo before the subject assault.



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