Sunday, July 17, 2011
Not Too Helpful: Fourth Circuit Finds Character Evidence Regarding Helpfulness Was Properly Excluded
Federal Rule of Evidence 404(a)(1) 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, 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....
Meanwhile, Federal Rule of Evidence 405 provides that
(a) Reputation or opinion.
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 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.
What this means is that while a criminal defendant can use Rule 404(a)(1)'s "mercy rule" to present evidence of a pertinent character trait, he can only prove that trait through opinion and/or reputation testimony unless that trait is an essential element of the charge against him or his defense. And this limitation was a problem for the defendant in United States v. Lecco, 2011 WL 2708416 (4th Cir. 2011).
In Lecco, George Lecco was convicted of one count of conspiracy to distribute cocaine; one count of use of a firearm in furtherance of drug trafficking; two counts of possessing a firearm as a convicted felon; four counts of distribution of cocaine; one count of murder with a firearm during a cocaine conspiracy; one count of witness tampering by killing; one count of witness retaliation by killing; and one count of conspiracy to destroy and conceal evidence. These convictions arose from Lecco's alleged "cocaine distribution and hiring of Patricia Burton and Valeri Friend to murder Carla Collins in retaliation for her telling police that Lecco continued to deal cocaine and carry firearms after agreeing to assist police in their drug investigation."
After he was convicted, Lecco appealed, claiming, inter alia, "that the district court abused its discretion when it excluded evidence of his helpfulness." Specifically, Lecco sought to introduce evidence that he had helped people in his community on several occasions in an attempt to show that he only helped his friends bury Collins after the murder."
The Fourth Circuit did not even need to address the seeming irrelevance of this evidence because Lecco's character for helpfulness was not an essential element of his defense, i.e., the jury still could have accepted his defense without the evidence. An example of such a case would be a case in which a defendant-blogger called the plaintiff an adulterer and the plaintiff sued the defendant for a defamation. In such a case, the plaintiff's (character for) adultery would be an essential element of the defendant's truth defense because he could not prove the defense without proving that the plaintiff was an adulterer. Conversely, Lecco's character for helpfulness was not an essential element of his defense, which meant that he could only present reputation and/or opinion testimony and not specific act evidence.