EvidenceProf Blog

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

Monday, December 10, 2012

Character Assassination, Take 2: The Mercy Rule & The Same Trait Requirement

Yesterday's post dealt with an interesting aspect of the propensity character evidence proscription and the so-called "mercy rule." Federal Rule of Evidence 404(a) states in relevant part:

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.  

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:  

(A) 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;  

(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....

As Federal Rule of Evidence 404(a)(2)(B)(ii) makes clear, when the defendant attacks the character of the alleged victim for a pertinent character trait, the prosecution may respond by offering "evidence of the defendant's same trait." Therefore, if a defendant presents evidence that his alleged victim was dishonest, the prosecution could respond by presenting evidence that the defendant is a dishonest person but could not present evidence that the defendant is a violent person. 

The clear implication from Federal Rule of Evidence 404(a)(2)(B)(ii) is that the same deal applies for Federal Rule of Evidence 404(a)(2)(A). In other words, if a defendant presents evidence that he is an honest person, the prosecution could respond by presenting evidence that he is a dishonest person but could not respond by presenting evidence that he is a violent person. In this post, I will give two examples of what I mean, one hypothetical and one actual.

First, the hypothetical: This one comes from a comment I made responding to another comment in yesterday's post:

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?

The answer should be "no." In this case, the prosecution would not be rebutting Dennis' evidence that he is an honest person.

The second example comes from my forthcoming eLangdell chapter on evidence and deals with a slightly different fact pattern:

There are 2 limitations on cross-examination regarding specific instances of conduct under Rule 405(a): First, the party asking the question(s) must have a good faith factual basis to believe that the defendant or victim committed the instances of conduct. Second, the incidents must be relevant to the character traits of the defendant or victim that are testified to by the character witness. United States v. Dillard, 2009 WL 4034812 (5th Cir. 2009). For instance, in Moore v. State, 143 S.W.3d 305 (Tex.App.-Waco 2004), a defendant charged with retaliation against a public servant presented evidence of his good character, which then opened the door for the prosecution to have character witnesses testify that the public servant had a good reputation for honesty. In addressing the defendant’s appeal after his conviction, the Court of Appeals of Texas, Waco, found that the trial court properly allowed the defendant to ask these character witnesses about the public servant’s prior theft convictions and properly did not allow him to ask them about the public servant’s DUI conviction because it was not relevant to his truthful character. See id.



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I agree with your answer to the example you posed both yesterday and today but I suspect we might get there by different paths.

The issue it seems to me is what purpose does the introduction of the character trait speak to. In your hypo there is no dispute that Dennis killed Vince so any testimony regarding his propensity to violence is irrelevant or duplicative; what more evidence does one need that Dennis is violent than his own confession he killed Vince? The only issue at stake is that hypo is whether the claim by Dennis that he shot in self-defense is true; that there was a lawful reason for his violence.

Now imagine the hypo was slightly different. Imagine that Dennis did not claim he shot in self defense but rather he claimed he didn't kill Vince at all, honestly. He doesn't know how Vince got a knife from the kitchen of Dennis stuck in his chest but honest injun it wasn't him. I'd argue that under that hypo the prosecution can introduce evidence of violence because it tends to counteract the purpose of Dennis's honesty.

I think the case under discussion in your post yesterday is more like my hypo than the one you introduced. What was under dispute in that case was whether abuse actually occurred. The defense sought to introduce character evidence that cast doubt on that claim and the state has every right to rebut it with character evidence that supported its claim.

Posted by: Daniel | Dec 10, 2012 3:59:07 PM

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