Friday, December 23, 2011
Federal Rule of Evidence 405(b) provides that
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
So, when is character an essential element of a charge, claim, or defense? Pretty rarely. It is an essential element in a negligent hiring/supervision case because how can a plaintiff prove, for example, that a company was negligent in hiring/supervising a driver with a history of DUIs without presenting evidence of these DUIs? It's also an essential element in a defamation case because how can a defendant prove, for example, that the story it published accusing a plaintiff-politician of adultery was true and thus not defamatory without presenting evidence of the plaintiff's extramarital affairs. And, as the recent opinion of the Ninth CIrcuit in United States v. Reed, 2011 WL 5869494 (9th Cir. 2011), makes clear, character is also an essential element of (disproving) an entrapment defense.
In Reed, Deonte Reed was convicted of conspiracy to interfere with commerce by robbery, conspiracy to possess cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting. At trial, Reed claimed that he was entrapped, and, in addressing his appeal, the Ninth Circuit noted that
When a defendant asserts entrapment as a defense, the government must prove beyond a reasonable doubt that either "'(1) the defendant was predisposed to commit the crime before being contacted by government agents; or (2) the defendant was not induced by the government agents to commit the crime.'"
The court then went on to note that it looks to five factors in the predisposition determination:
(1) the character or reputation of the defendant, including any prior criminal record, (2) the party who made the initial suggestion, (3) whether profit was a motive, (4) evidence of reluctance by the defendant, and (5) the nature of the government's inducement.
In appealing his conviction, Reed claimed that evidence of his other bad acts were inadmissible propensity character evidence, but the Ninth Circuit disagreed, finding that his character was an essential element of his entrapment defense, meaning that the evidence was admissible under Federal Rule of Evidence 405(b).