EvidenceProf Blog

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

Sunday, December 9, 2012

Character Assassination?: Court Of Appeals Of Michigan Seemingly Errs In Character Evidence Ruling(s)

Similar to its federal counterpart, Michigan Rule of Evidence 404(a)(1) provides that 

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution....

So, let's say that a mother is on trial for second-degree child abuse. And let's say that the mother introduces character evidence tending to show that she is a compassionate and selfless person. Does the introduction of this character evidence open the door for admission of character evidence regarding the mother's impatience and inability to control her temper? And what about evidence that she mouthed the word "bitch" at a prior court proceeding? According to the recent opinion of the Court of Appeals of Michigan in People v. Rao, 2012 WL 5233608 (Mich.App. 2012), both of these types of rebuttal character evidence were inadmissibleadmissible. I disagree.

In Rao, the facts were as stated above, with Malini Rao charged with second-degree child abuse after allegedly physically abusing her daughter. After Rao was convicted, she appealed, claiming, inter alia, that the trial court erred with regard to the admission of rebuttal character evidence. As noted above, at trial, Rao had presented evidence that she was a compassionate and selfless person:

Defendant testified on direct examination that she previously volunteered her time to help people, mostly children, with developmental problems and, while a student, assisted other students with special needs. She also assisted outpatient surgery patients and volunteered at a library. She claimed that she wanted to adopt a female child from India because of the way that girls are viewed in the Indian culture and she wanted to make a difference in a child's life.

And, as noted, in response, the prosecution presented evidence regarding Rao's impatience and inability to control her temper as well as evidence that she mouthed the word "bitch" at a prior court proceeding. The Court of Appeals of Michigan found no problem with these rebuttals. According to the court, 

-"the evidence was admissible under MRE 404(a)(1) FN3 and MRE 405 to rebut defendant's claim that she was a compassionate and selfless person;" and

-"[t]his testimony opened the door to the prosecutor's questioning regarding defendant's impatience and bad temper.

So, why do I disagree? Rao presented character evidence concerning the character traits of compassion and selflessness. This meant that the prosecution could have responded with character evidence tending to indicate that Rao was dispassionate and/or selfish. But what does impatience have to do with compassion and selflessness? If Rao had introduced evidence that she was a patient person, the prosecution could have responded with evidence that she was an impatient person. And if Rao had presented evidence that she was mellow, even keeled, etc., the prosecution could have responded with evidence of her bad temper. But that's not what happened in Rao, so I don't see how the court's conclusion was justified.



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First, I think you mean admissible in the first paragraph.

Second, I agree with the court. The test should be propose driven, not mechanical. The defense wanted to introduce character evidence that tended to show she did not abuse the child so the prosecution has the right to introduce character evidence she did. The type of test you want to set up would quickly devolve into vapid word play or one side parroting the other.

This reminds me of the old debate between Learned Hand and Holmes as to whether the test for free speech should be contextual or language sensitive. I've always agreed with Holmes because I strongly resist attempts to fetishize words. The critical tests should not be only what the words say but what purpose language is used for and context it is used in. In this case the purpose of the words is plain: to intimate she's not the type of person who would abuse a child. The prosecution has a right then to use language that would counteract that purpose.

Posted by: Daniel | Dec 9, 2012 2:16:41 PM

Daniel: How about this fact pattern? Dennis is on trial for murdering Vince. The allegation is that Dennis called Vince and lied to Vince about his TV being broken and asking him whether he could come over and fix it. While Vince was at Dennis' house, Dennis allegedly shot and killed him. Dennis, meanwhile, claims that his TV was broken and that Vince attacked him, causing him to shot Vince in self-defense.

At trial, Dennis presents character evidence concerning his character for honesty. Should the prosecution be able to respond with evidence concerning Dennis' character for violence?

Posted by: Colin Miller | Dec 10, 2012 4:05:28 AM

why is the defense permitted to offer this "character trait" evidence in the fist place - is this not "specific act" evidence (volunteering her time with needy children etc...) and not character trait evidence (defense witness testifying she is compassionate and selfless)?

Posted by: cb | Dec 10, 2012 12:37:09 PM

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