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Univ. of South Carolina School of Law

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Wednesday, April 9, 2014

Essential Reading: Court of Appeals of Arizona Finds Co-Workers Couldn't Testify About Defendant's Peaceful Acts

Arizona Rule of Evidence 405 reads as follows:

Rule 405. Methods of Proving Character  

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.

So, assume that a defendant is charged with aggravated assault. Can the defendant call two co-workers to testify regarding specific incidents in which he peacefully talked to others with whom he was having a dispute to prevent escalating the issue? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Oman, 2014 WL 1329156 (Ariz.App. Div. 1 2014), the answer is "no."

The facts in Oman were as stated above, with Erik Oman being the defendant. After the trial court deemed the subject character evidence inadmissible and Oman was convicted, he appealed. The appellate court, however, agreed with the trial court noting that

In conformance with Rule 405(a), the jury heard evidence of Oman's peaceful character based on his own testimony in addition to the opinion and reputation testimony provided by his co-workers. Oman does not argue that his character or trait of character was an essential element of the charge, and therefore specific instances of his peaceful resolution of other disputes were not admissible under Rule 405(b)

This was the correct ruling. Character is only an essential element of a charge, claim, or defense if proving character is necessary to (dis)prove the charge, claim or defense. A plaintiff couldn't prove that a bus company was negligent in hiring a drunk driver without proving that its employee had a character for drunkenness. A newspaper sued for defamation couldn't prove its truth defense without establishing that the person it allegedly defamed actually had the character trait which the newspaper's article claimed (e.g., the local politician was an adulterer).

Conversely, a character for nonviolence is not an essential element of an assault defense. A generally violent person can be innocent of an assault charge just as a generally peaceful person can be guilty of an assault charge.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2014/04/arizona-rule-of-evidence-405reads-as-follows-rule-405-methods-of-proving-character-a-reputation-or-opinion-in-all-cas.html

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Comments

What are you talking about? Your rationale has nothing to do with the reason behind the rule. The court doesn't allow specific instances because it doesn't want a minitrial on dozens of past events. You're specifically allowed to produce reputation and opinion evidence because a peaceful person is less likely to have committed a violent act.

You may need to go back and read the committee notes on that rule.

Posted by: nidefatt | Apr 9, 2014 6:16:41 PM

There are two parts to Rule 405. Rule 404(a)(2), the mercy rule, says a criminal defendant can introduce pertinent propensity character evidence concerning himself or the victim. Rule 405(a), however, limits such evidence to opinion and reputation testimony on direct examination.

Rule 405(b), however, provides that specific instances of conduct can be introduced when character is an essential element of a charge, claim, or defense. But this Rule only applies in a limited universe of cases: negligent hiring/supervision, defamation, entrapment, and maybe insanity. Conversely, a defendant's character for nonviolence is not an essential element of a self-defense claim, which is why Oman could not have his co-workers testify under Rule 405(b).

Posted by: Colin Miller | Apr 10, 2014 4:52:40 AM

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