EvidenceProf Blog

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

Thursday, January 26, 2012

Ham Handed?: 6th Circuit Finds Character Evidence Properly Excluded Despite Mercy Rule

While Federal Rule of Evidence 404(a)(1) precludes the admission of propensity character evidence, Federal Rule of Evidence 404(a)(2)(A), the "mercy rule," states that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it...

That said, Federal Rule of Evidence 405(a) states that

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

And what this means is that the defendant in United States v. Silber, 2012 WL 171397 (6th Cir. 2012), was out of luck.

In Silber, Dr. Alan Silber was convicted defrauding Medicare to the tune of several hundred thousand dollars by prescribing expensive medications to patients who did not need them. At trial, the district court excluded Silber's testimony that he received no overbilling notices from Medicare while working in earlier jobs. Silber offered this evidence to show his honest character.

After he was convicted, Dr. Silber appealed, claiming that his proffered testimony was admissible under Federal Rule of Evidence 404(a)(2)(A). The Sixth Circuit disagreed, concluding that

Although a criminal defendant generally may introduce character evidence, see Fed.R.Evid. 404(a)(2)(A), he must do so through "testimony about [his] reputation or by testimony in the form of an opinion," Fed.R.Evid. 405(a). Only where "a person's character or character trait is an essential element" of the charge (not true here) may the defendant introduce character evidence about "relevant specific instances of the person's conduct."

And, according to the court,

The testimony at issue falls squarely within Rule 405's implicit prohibition. A leading treatise provides a helpful example: "a federal inspector charged with accepting a bribe from a meat packer can call a character witness to show his reputation for being honest, but he may not call other meat packers to testify that he did not solicit bribes from them."...Silber's attempt to establish his character for honesty by showing that Medicare had not previously noticed any overbillings from him was, if anything, even more ham-handed: rather than calling others to testify to specific instances in which he had not behaved dishonestly, he attempted to do so himself. The court properly excluded the testimony.



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