Friday, November 20, 2020
Generally propensity character evidence ("once an arsonist, always an arsonist") is inadmissible pursuant to Federal Rule of Evidence 404(a). That said, Federal Rule of Evidence 404(a)(2) contains a "mercy rule," which provides that
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; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
In addition to this criminal "mercy rule," Iowa also has a limited civil "mercy rule." Iowa Rule of Evidence 404(a)(2)(B) provides an exception to the propensity character evidence prohibition in civil cases. Here is it's language:
(B) In civil cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same.
So, imagine that Veronica brings a civil battery action against Dana. Dana could present evidence of Veronica's bad character for violence, which would then open the door for Verronica to present evidence of her good character for nonviolence.