He Ain't Heavy, He's My Brother: Court Of Appeals Of Minnesota Concludes Jurors Would Have Ignored Brother's Character Testimony In Mercy Rule Appeal

Like its federal counterpart, Minnesota 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....

In its recent opinion in State v. Pak, 2010 WL 3304693 (Minn.App. 2010), the Court of Appeals of Minnesota correctly found that the trial court erred in failing to admit evidence under this so-called "mercy rule," but I feel like it went too far in finding this error to be harmless.

In Pak, Henry Hyunchoon Pak was convicted of assault and emergency-call-interference. Prior to trial, Pak's counsel informed the trial court that he intended to call Pak's brother as a character witness, and the following colloquy ensued:

THE COURT: Character witnesses are usually not admissible in criminal cases. I don't know [what] the purpose of character witnesses would be, his character is not in dispute, is it? Do you [the prosecutor] intend to offer evidence as to his character?

THE PROSECUTOR: I have no character evidence, Judge.

THE COURT: So-

DEFENSE COUNSEL: That's fine then.

THE COURT: Those witnesses are not appropriate, all right? Step off and we'll get the jury up here....

Pak's counsel did not ask to make an offer of proof about the specifics of the brother's testimony, and the court proceeded immediately into jury selection.

After he was convicted, Pak appealed, claiming, inter alia, that the trial court by failing to allow him to introduce character testimony by his brother. In response, the court noted that, pursuant to Minnesota Rule of Evidence 103(a)(2),

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Ordinarily, then, Pak's counsel would not have preserved this issue for appellate review because he failed to make an offer of proof, but the Court of Appeals found that such an offer was not required in Pak's case because it was apparent from the context of the above colloquy that the brother intended to offer testimony about Pak's good character.

The court then agreed with Pak that the trial court erred by failing to allow him to admit his brother's character evidence but found the error to be harmless. The second reason the court gave for this conclusion was that the evidence in the case otherwise clearly supported a finding that Pak was guilty. I have no problem with this conclusion. I do, though, have a problem with the court's first conclusion, which was that

Had the brother testified, the district court would have properly limited his testimony to his personal opinion of [Pak] and his impression of [Pak]'s reputation, and the court would not have permitted him to recount specific instances of conduct....Additionally, the court would have instructed the jury that in weighing the testimony, the jury could consider the witness's relationship to the defendant, interest in the outcome of the case, and "any other factors that bear on believability and weight."...We are persuaded beyond a reasonable doubt that the jury would have given little, if any, weight to the brother's testimony.

Really? This just seems like overkill to me. I can understand that the court would be a bit skeptical that the jury would give much weight to character evidence rendered by the defendant's brother. But I don't see how it could be persuaded beyond a reasonable doubt that the jury would give little to no weight to the brother's testimony. Sure, the brother would be biased on his brother's behalf, but so would almost any character witness called on behalf of a party. And, at least the brother ostensibly knew Pak his whole life and could provide valuable insights into his character. I can understand the court finding that this evidence would not be enough to tip the scales of justice given the other evidence in this case. But did it really need to conclude beyond reasonable doubt that your average juror would completely or almost completely disregard what a brother says about his brother's character?

-CM