Thursday, February 23, 2012
Federal Rule of Evidence 404(a)(2)(B) provides that
subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait....
In People v. Malone, 2012 WL 555791 (Mich.App. 2012), Harvey Malone, Jr. appealed from his convictions for one count of carrying a concealed weapon and one count of felony-firearm, claiming that the trial court erred by precluding him from presenting character evidence concerning the alleged victim. If his case were governed by the Federal Rules of Evidence, he would have been correct. But his case wasn't governed by the Federal Rules.Instead, Malone's case was governed by the Michigan Rules of Evidence, which have two provisions dealing with the admissibility of evidence concerning the character of the alleged victim. Michigan Rule of Evidence 404(a)(2) provides that
When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered 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 charge of homicide to rebut evidence that the alleged victim was the first aggressor....
and Michigan Rule of Evidence 404(a)(3) provides that
In a prosecution for criminal sexual conduct, evidence of the alleged victim's past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease....
Because Malone was not charge with a homicide, Michigan Rule of Evidence 404(a)(2) did not apply, and because Malone was not charged with a sexual crime, Michigan Rule of Evidence 404(a)(3) did not apply. Thus, the Court of Appeals of Michigan found that Malone's appeal was without merit.