EvidenceProf Blog

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

Tuesday, May 29, 2012

Rubber & Glue: Supreme Court of California FInds No Problem With Crossover Character Evidence Rule

Federal Rule of Evidence 404(a)(2)(B) provides that in a criminal action

(B) 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....

Somewhat similarly, California Evidence Code Section 1103(b) provides that

In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

In other words, the California rule, like the federal rules, allows for the prosecution to attack the character of the defendant after the defendant has attacked the character of the victim (although the California rule is limited the evidence of violent character). So, what's the basis for these rules, and how many states follow the federal rule? Let's take a look at the recent opinion of the Supreme Court of California in People v. Fuiava, 269 P.3d 568 (Cal. 2012).

In Fuiava, Freddie Fuiava was convicted of the first degree murder of Los Angeles County Deputy Sheriff Stephen Blair and the premeditated attempted murder of Blair's partner, Deputy Robert Lyons. At trial, Fuiava had presented evidence attempting to establish that Deputy Blair had a reputation and character for engaging in violence, thereby seeking to bolster the credibility of his contention that it was Deputy Blair who unjustifiably shot first. In turn, the trial court had found that this opened the door under Section 1103(b) for evidence concerning Fuiava's violent character.

After he was convicted, Fuiava appealed, claiming, inter alia,

that the admission of his violent character as propensity evidence and the instruction permitting the jury to consider it in determining his guilt "was fundamentally unfair in violation of his rights to a fair jury trial, due process and to be protected from cruel and unusual punishment, as protected by the Sixth, Eighth and Fourteenth Amendments of the United States Constitution."

The Supreme Court of California disagreed, finding that

We cannot say that, in providing for the jury to obtain a balanced view of the possible violent tendencies of both the victim and the defendant, the Legislature ran afoul of any fundamental conception of justice embodied in the federal Constitution.

Specifically, the California Supremes found that

the operation of section 1103(b) is dependent upon a choice made by the defendant, in much the same way that other strategic choices made by the defense during a trial will make admissible evidence that otherwise would have been excluded....It is not fundamentally unfair to require the defendant to make that choice: "The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow....Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose."

Moreover, the court noted that existence of Federal Rule of Evidence 404(a)(2)(B) and found that

Thirteen other jurisdictions, whose evidentiary rules generally parallel the federal rules, have since adopted the same or a similar rule.[FN30] The federal rule (and those of 12 other jurisdictions) actually would appear to be broader than section 1103(b), in the sense that its scope is not limited to evidence of violence.

The other jurisdictions that (thus far) have followed the amended federal rule are Delaware, Colorado, Kentucky, Michigan, North Dakota, Pennsylvania, Tennessee, Utah, Vermont, the Commonwealth of the Northern Mariana Islands, and the territories of Guam and the United States Virgin Islands.

Finally, the court noted that the rationale for the federal rule is similar to the rationale for the California rule: According to the Advisory Committee's Note to the amendment to Federal Rule of Evidence 404,

The amendment makes clear that the accused cannot attack the alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim's violent disposition. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. This may be the case even if evidence of the accused's prior violent acts is admitted under Rule 404(b), because such evidence can be admitted only for limited purposes and not to show action in conformity with the accused's character on a specific occasion. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim.



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