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

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Thursday, June 14, 2012

Be Aggressive, Take 2: Commonwealth v. Bedford, America's Most Wanted & Why Rule 404(a)(2)(C) Makes No Sense

Federal Rule of Evidence 404(a)(2)(C) provides that

in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Similarly, Pennsylvania Rule of Evidence 404(a)(2)(ii) provides that

In a homicide case, where the accused has offered evidence that the deceased was the first aggressor, evidence of a character trait of the deceased for peacefulness is admissible when offered by the prosecution to rebut the same.

Recently, the Superior Court of Pennsylvania had occasion to apply Rule 404(a)(2)(ii) in its recent opinion in Commonwealth v. Bedford, 2012 WL 1950152 (Pa.Super. 2012). I think that Federal Rule of Evidence 404(a)(2)(C) and state counterparts make no sense and, as I noted in a prior post, I will argue as much in a work in progress. So, what's the general basis for objection?

In BedfordDuane Bedford performed some construction work for his neighbor, Sam Brown, until a dispute arose between the two men before the job was completed. That dispute escalated when Brown suspected that Bedford smashed his car windows. Brown went to confront Bedford, with that confrontation ending with Bedford shooting Brown three times, causing his death. Bedford subsequently went incognito, leading to a year-long search for him, an appearance on America’s Most Wanted, and, ultimately, his apprehension.

Charged with first-degree murder, Bedford claimed self-defense and specifically that Brown was the first aggressor who came looking for him "with hardness of heart." Notably, Bedford did not present any propensity character evidence tending to show that he was generally a peaceful person or that Brown had generally been a violent person. He simply claimed that Brown attacked him first in the encounter that ended with his death.

In response to this defense, the Commonwealth called Sergeant Sean Butts as a character witness, leading to, inter alia, the following exchange:

[THE COMMONWEALTH]: Do you know [Victim] to be a violent individual?

[SGT. BUTTS]: No.

[THE COMMONWEALTH]: [Why] do you say “no”?

[SGT. BUTTS]: [Victim] was a very soft-spoken, meek person, very subdued. Never really raised his voice around me or in public. There have been some instances at his employment where he could have gotten upset or violent, but he didn't.

After he was convicted, Bedford unsuccessfully appealed, with the Superior Court of Pennsylvania deeming Sergeant Butts' testimony admissible under Pennsylvania Rule of Evidence 404(a)(2)(ii).

So why do I think that this rule and its federal counterpart make no sense? Propensity character evidence is generally inadmissible. The "mercy rule" contained in Federal Rules of Evidence 404(a)(2)(A)&(B), however, gives criminal defendants a Pandora's Box of sorts. If an accused wants to prevent propensity character evidence from infecting his trial, he merely needs to refrain from introducing any propensity character evidence. If, however, the defendant wants to present evidence of his good character for a pertinent trait, the prosecution can respond with evidence of his bad character for the same trait. And, if the defendant wants to present evidence of the alleged victim's bad character for a pertinent trait, the prosecution can respond by presenting evidence of (a) the alleged victim's good character for the same trait; and (b) the defendant's bad character for the same trait.

Until 2006, some courts found that this "mercy rule" applied in both criminal and quasi-criminal cases, i.e., civil proceedings where a judgment rendered against the party seeking to introduce character evidence necessitates a finding that the party committed a particular act that was also punishable under criminal law. In 2006, however, Rule 404 was amended to make clear that it applies only in criminal cases, with the Advisory Committee noting that

The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay....In criminal cases, the so-called "mercy rule" permits a criminal defendant to introduce evidence of pertinent character traits of the defendant and the victim. But that is because the accused, whose liberty is at stake, may need "a counterweight against the strong investigative and prosecutorial resources of the government." C. Mueller & L. Kirkpatrick, Evidence: Practice Under the Rules, pp. 264–5 (2d ed. 1999). See also Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 855 (1982) (the rule prohibiting circumstantial use of character evidence "was relaxed to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the factfinder just what sort of person he really is"). Those concerns do not apply to parties in civil cases. 

This amendment thus provides a defense for Federal Rules of Evidence 404(a)(2)(A)&(B) in that it allows a criminal defendant with so much at stake and so little in the way of conventional proof to level the playing field a bit against the government and its strong investigative resources.

So, in what type of case are those resources levied the most against a criminal defendant? And, in what type of case does a criminal defendant have the most at stake? The clear answer to both questions is a homicide defendant. It is well recognized that prosecutors/police devote more resources to murder cases (and especially capital cases) that any other case, and federal homicide defendants (and many state homicide defendants) face the very real specter of death at the end of their trials. And yet, a homicide case is the one type of case in which the prosecution holds the cards and can decide whether to inject propensity character evidence into a defendant's trial pursuant to Federal Rule of Evidence 404(a)(2)(C). How does this make any sense given the state rationales for the mercy rule? The clear answer is that it does not.

Of course, the argument could be made that the decision is still in the defendant's court because he can choose whether or not to claim self-defense and that the alleged victim was the first aggressor. But, assuming that the defendant has a colorable claim that the victim was the first aggressor, of course he is going to raise it at trial. And the consequence is that the prosecution can then present evidence that the victim was a peaceful person. And then, if the defendant wants to contradict the saintly image of the victim by presenting evidence of his violent character, this then opens the door for the prosecution to attack the defendant's character for violence pursuant to Federal Rules of Evidence 404(a)(2)(B). Simply put, the stated rationale for the "mercy rule" compels the conclusion that Rule 404(a)(2)(C) be abolished.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/06/federal-rule-of-evidence-404a2cprovides-that-in-a-homicide-case-the-prosecutor-may-offer-evidence-of-the-alleged-vi.html

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