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

Friday, January 25, 2013

I Keep Forgetting: 6th Circuit Finds Forgetfulness is Not a Character Trait for Rule 404 Purposes

Federal Rule of Evidence 404(a)(1) provides that "[e]vidence 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." So, is forgetfulness a character trait is covered by Rule 404(a)? According to the recent opinion of the Sixth Circuit in United States v. Nixon, 694 F.3d 623 (6th Cir. 2012), the answer is "no."

In Nixon, Ronda Nixon was charged with wire fraud, bank fraud, aggravated identity theft, and using an unauthorized access device. These alleged crimes involved Nixon's use of a credit card belonging to Pruitt & Thorner Law Offices, and,

At trial, Nixon testified that [Garis] Pruitt had authorized several of her personal charges on the firm's American Express credit card and on the line of credit with American Express Bank, but that he had forgotten that he had done so as a result of his advanced age and his health issues. As support for her defense, Nixon offered the testimony of Michael Curtis, an attorney and longtime colleague of Pruitt. She claims that Curtis would have testified that Pruitt forgot Curtis's name at a deposition unrelated to this case that occurred a short time before Nixon's trial.

After she was convicted, Nixon appealed, claiming, inter alia, that the district court erred in deeming this evidence inadmissible because it qualified for admission under Federal Rule of Evidence 404(a)(2)(B), which, notwithstanding Federal Rule of Evidence 404(a)(1), allows a defendant to introduce evidence of a pertinent character trait of the alleged victim. 

The government claimed that this issue was unpreserved for appeal, but the Sixth Circuit found that preservation didn't matter because the evidence was inadmissible. According to the court,

We disagree with both the district court's conclusion and the parties' assertion that forgetfulness is a character trait. Although this court has never ruled on the issue, other circuits have determined that the term "character trait" does not encompass a witness's memory or mental capacity. See United States v. Cortez, 935 F.2d 135, 138–39 n. 3 (8th Cir.1991) ("We do not believe that Rule 404(a)(1) encompasses slowness to answer, forgetfulness, or poor ability to express oneself...."); see also United States v. West, 670 F.2d 675, 682 (7th Cir.1982) (noting that although Rule 404(a)(1) does not define the term "character trait," the term more properly references "elements of one's disposition, such as honesty, temperance, or peacefulness," rather than one's "intelligence" (internal quotation marks omitted)), overruled on other grounds by United States v. Green, 258 F.3d 683 (7th Cir.2001). We find our sister circuits' analysis on this issue persuasive, and thus conclude that forgetfulness is not a character trait.

That said, the Sixth Circuit still agreed with the district court's decision to exclude the evidence because 

the quality of Pruitt's memory at or around the time that Nixon made the transactions (March to June 2007) was certainly a fact of consequence. But Curtis could testify as to Pruitt's memory only in the time period immediately before Nixon's trial (May 2010), nearly three years after the last transaction was made. In addition, Curtis's proposed testimony was not going to show a pattern of Pruitt's forgetfulness, but only that Pruitt had a single memory lapse that was unrelated to any financial or business transaction. Accordingly, we conclude that Curtis's testimony about an isolated incident three years after the time period at issue was irrelevant. The district court, therefore, did not err in excluding the testimony.

(The court also found that extrinsic evidence of Pruitt forgetting Nixon's name was inadmissible under Federal Rule of Evidence 608(b)).



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I don't find the court's logic persuasive though I likely agree with the end result in this case. Forgetfulness can be a character trait. People would consider a person with "photographic memory" to have that character trait so why not someone who is exceptionally forgetful? Further, memory ability doesn't have any relationship to "intelligence" and to assert it does is simply wrong.

To determine whether something is a character trait one needs to look at the cause. In this case the defendant claimed that forgetfulness was due to age. That might make it a trait (insofar as it was a pattern) but it wouldn't speak to the defendant's /character/ which is normally assumed to be under the person's control (which age is not).

So in this case I don't think the defendant was able to establish either that a trait even existed or that it spoke to that person's character. It's a wild leap, though, to say that forgetfulness can never be a character trait. It can, it wasn't here, and the court should have stopped there.

Posted by: Daniel | Jan 25, 2013 9:54:24 PM

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