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Thursday, August 1, 2013

The Character of the Matter: 5th Circuit Finds No Error in Exclusion of Character Evidence Concerning Naivety

Federal Rule of Evidence 404(a)(1) provides that

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.

That said, Federal Rule of Evidence 404(a)(2) indicates that

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....

So, let's say that the sister of a drug kingpin who ran a large-scale cocaine and marijuana trafficking operation is herself charged with several crimes related to that operation. Pursuant to Rule 404(a)(2), should she be able to testify that she had a character for being naive and gullible? This was the question addressed by the Fifth Circuit in United States v. Alaniz, 2013 WL 3879878 (5th Cir. 2013).

In Alaniz, the facts were as stated above, with the kingpin being Salas–Galaviz, an employee at a Krispy Kreme Doughnuts in Dallas who was apprehended after he began displaying sudden, large amounts of wealth. Thereafter, the prosecution believed that his younger sister, Yesica Magana, had knowledge of and participated in the drug trafficking operation and charged her in connection with it.

At trial, 

Magana listed a friend and co-worker from the hair salon, Kim Montee, as a character witness. Montee would have testified that Magana was naive and gullible, or unduly influenced by Salas, and therefore did not know that Salas was a drug trafficker. The district court rejected the proffered testimony, explaining: "[T]he fact that [Magana] is or is not naive will not establish whether or not she has knowledge." The court added that Magana "could be naive and still have done it willfully and knowingly...."

After she was thereafter convicted, Magana appealed, claiming, inter alia, that "Montee's testimony would have helped to establish a character trait of naivete which, Magana posits, would have undermined the jury's determination that she knew Salas was a drug trafficker."

In addressing this argument, the Fifth Circuit found that

We note at the outset that this argument fails on appeal in light of our broad deference to district court evidentiary determinations....That said, Magana presented a naivete defense at closing argument. It failed to persuade the jury, presumably because of the overwhelming evidence of Magana's guilt. The incremental testimony of Montee—Magana's conceded friend—would not have changed that outcome (at least not for legally cognizable reasons). The district court did not abuse its discretion when it limited Magana's introduction of Montee's testimony on the question of whether Magana is naive and gullible, or unduly influenced by Salas.

This has to be some of the worst analysis that I have ever seen by a federal appellate court. Of course there is broad deference given to district court decisions, but a blind eye should not be turned to clear errors. The district court excluded Magana's character evidence because, in essence, a person can be naive and still act willfully and knowingly. Of course she can! That's the whole point of character evidence.

If a defendant charged with a crime of violence presents character evidence that she is a nonviolent person, (the jury can find that) she still could have acted violently at the time of the crime charged. This is the whole point of the mercy rule contained in Federal Rule of Evidence 404(a)(2): The defendant presents evidence of her good character for a pertinent character trait, and the jury either believes or disbelieves it.

Then, the court relies on the fact that Magana apparently presented a naivete defense at closing argument to conclude that the friend's testimony would have been incremental. Ridiculous. As far as I can tell, this would have been the only evidence of Magana's naivete presented at trial. Thus, the testimony was not merely cumulative evidence that added little probative value; instead, it would have been the centerpiece of Magana's defense.

The only way that the Fifth Circuit's opinion would be defensible would be if the Fifth Circuit were in effect calling into question Federal Rule of Evidence 404(a)(2) and claiming that character evidence is basically worthless. I don't necessarily disagree with that proposition, but I'm not sure that it is one that the Fifth Circuit wants to make.

-CM

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Comments

The grim reality is that courts are more and more willing to strip criminal defendants of any defense for their conduct at trial. The right to a trial by jury has never sat well with criminal appellate courts. The law, after all, is the law. Defendants have the right to a complete defense under the 6th Amendment, but courts don't seem to see that as allowing the defendant to tell the jury what they want, but rather to mean the defendant can have a defense if the trial court deems it one. It's a bad situation.

Posted by: nidefatt | Aug 1, 2013 6:48:36 AM

@CM.

I don't understand your point. You write, "The district court excluded Magana's character evidence because, in essence, a person can be naive and still act willfully and knowingly. Of course she can!" OK. We agree.

The you write, "That's the whole point of character evidence."

HUH? The character evidence offered here doesn't help her at all. Even if it is 100% true, it makes no difference to her guilt. Maybe we just disagree on the meaning of naivety. If one thinks of naive as being "easily deceived" then perhaps the jury could find she did not do the crime "knowingly". But that is not the common meaning of naive. Properly understood, the mental state of mind of "knowingly" and "willingly" are /irrelevant/ to the state of mind labeled as "naive". IMO the judge properly excluded the character evidence because it cannot in any legally cognizable way persuade the jury one way or the other of her guilt.

Posted by: Daniel | Aug 1, 2013 9:33:56 PM

Daniel: Maybe I wasn't clear enough. What I meant to say is that simply because someone GENERALLY has a character for naivety doesn't mean that they ALWAYS lack knowledge. The same goes for a character for violence/nonviolence. As the Court of Appeals of Alaska noted in Allen v. State,

"neither Labat’s character for violence nor Allen’s character for violence was “an essential element” of the State’s murder charge or of Allen’s self-defense defense. The jury could adopt Allen’s self-defense theory even if they concluded that Labat was not a characteristically violent man; that is, a characteristically peaceful person may yet be an aggressor. Similarly, the jury could acquit Allen under a self-defense theory even if they concluded that Allen was characteristically given to violence; the defense of self-defense is available to all, even to characteristically violent people. By the same token, the jury could reject Allen’s claim of self-defense and convict Allen of murder even if they disbelieved the State’s evidence of Allen’s violent character and instead concluded that Allen was, by nature, a peaceful man."

This is the long and short of character evidence under the mercy rule. The defendant is charged with a crime. The defendant claims, "But I'm not a generally violent/dishonest/etc. person." Then, the jury either believes or disbelieves the character evidence. But, even if it believes the character evidence, it can still convict under the theory that the defendant acted different than she usually does at the time of the crime charged.

Posted by: Colin Miller | Aug 2, 2013 3:47:55 AM

I agree with your analysis -- and criticism -- of the appellate court reasoning. It was a "pertinent"/relevant trait, and it was error to exclude it.

The discussion of the overwhelming other evidence bears on whethe the error was a harmless error, not on whether it was error in the first instance.

Posted by: Sam Stonefield | Aug 3, 2013 5:54:08 PM

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