Federal Evidence Review

In obstruction of justice trial of a police officer, in which the defendant’s mens rea was highly contested, the trial court improperly excluded the defendant’s proffer of good character evidence as a “law-abiding, trusted police officer” requiring reversal of the jury conviction, in United States v. Yarbrough, 527 F.3d 1092 (10th Cir. June 3, 2008) (No. 06-5229)

FRE 404(a)(1) often seems completely overshadowed by other sections of the character evidence rule, such as by FRE 404(b) (Other Crimes, Wrongs, Or Acts). FRE 404(a)(1) sets forth a first exception to the general rule in 404(a) that character evidence is inadmissible to prove conformity with character. FRE 401(a)(1) is often used to consider the admissibility in a criminal case of a “pertinent” character trait of the accused. In 2008, the Tenth Circuit found it necessary to reverse an obstruction of justice conviction after the trial judge improperly excluded the defendant’s proffer of evidence as to his good character. The case carefully demonstrates how FRE 404(a)(1) can be used to a defendant’s advantage in a criminal case.

In the case, defendant Yarbrough was a member of a police department gang unit. A series of “leaks” of information about gang activity investigations was observed by department supervisors. To investigate the source of the leak, they arranged for a fake story to be made and traced the defendant leaking the information to a known gang member, Daniels. The defendant was charged with obstructing the investigation of Daniels.

The defendant claimed he was entrapped. At trial, the defendant sought to introduce character evidence of his integrity and status as a law-abiding police officer under FRE 404(a)(1) and FRE 405, claiming that his character “was directly relevant to the charges” of impeding an investigation. The trial court excluded the character evidence “on the ground the proffered evidence went to Yarbrough’s ‘state of mind at a particular incident,’ rather than to the existence of ‘operative facts’” – namely his state of mind when telling Daniels of the FBI actions. Yarbrough, 527 F.3d at 1100-01. The jury convicted the defendant. On appeal, he challenged the exclusion of the character evidence.

The Tenth Circuit reversed the conviction and remanded because the trial judge erred in excluding the defendant’s character evidence. This error was not harmless, under FRE 103(a). As the circuit explained:

“The Federal Rules of Evidence specifically provide that at trial a defendant may adduce ‘evidence of a pertinent trait of character.’ Fed. R. Evid. 404(a)(1). The Rules further provide that ‘proof [of character] may be made by testimony as to reputation or by testimony in the form of an opinion.’ Fed. R. Evid. 405(a). Taken together, these rules make clear that although propensity evidence is generally not allowed, ‘when ... the defendant in a criminal case seeks to offer evidence of his good character to imply that he is unlikely to have committed a crime, the general rule against propensity evidence is not applied.’”

The circuit discounted a distinction drawn by the trial judge. The judge excluded the defendant’s proffered character evidence, reasoning that it was inadmissible because “the underlying facts were not in dispute and the only issue for the jury was whether Yarbrough acted with a prohibited mind set at the time he undertook those undisputed actions.” Yarbrough, 527 F.3d at 1101.

However, the circuit noted that FRE 404(a)(1) did not make such a distinction. It explained that the circuit case-law “recognized that such evidence is not only relevant, but also vitally important.” Yarbrough, 527 F.3d at 1101-02 (citing Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959) (In tax evasion trial, defendant admitted the underpayment of taxes but denied any wrongful intent and sought to present three character witnesses, the trial court limited him to one character witness, which the circuit found was an error because: “The rule is well established that “a defendant may offer his good character to evidence the improbability of his doing the act charged…. In a case such as this where the defendant admits understatement of income and defends solely on the lack of wilful intent, the character of the defendant is an important element. In the exercise of a sound judicial discretion a court may limit the number of witnesses permitted to testify to a single fact … However, to restrict a defendant to one character witness is a harsh limitation in a case such as this where the sole defense is lack of wilful intent.”)).

According to the circuit, character evidence is admissible when the sole issue involved not whether the defendant undertook certain criminal acts (this was not disputed) but rather whether the defendant had a prohibited state of mind when the acts were taken. This was what the trial court failed to appreciate during the defendant’s trial. See Yarbrough, 527 F.3d at 1102-03 (citing United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982) (“Evidence that [the defendant] was a law-abiding person would tend to make it less likely that he would knowingly break the law.”)).

The exclusion of the defendant’s character witness “was based on a legally erroneous reading of Rule 404(a)(1)” and the trial court abused its discretion in excluding it. The trial record showed that the defendant’s state of mind was “highly controverted” so that depriving the defendant of the evidence relevant to his defense on the crucial issue of his state of mind went to the heart of his defense and affected his substantial rights at trial. Yarbrough, 527 F.3d at 1102-03 (citing Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959) (“the character of the defendant is an important element” of the charged crime); United States v. Angelini, 678 F.2d 380, 382 (1st Cir. 1982) (exclusion of character evidence of defendant’s law-abiding nature affected his substantial rights in a prosecution for possession of illegal drugs)). Reversal was required because the error was not harmless: “Because the district court’s error deprived Yarbrough of important evidence relevant to a sharply controverted question going to the heart of Yarbrough’s defense, Yarbrough’s substantial rights were affected and he is entitled to a new trial.” Yarbrough, 527 F.3d at 1103.

Not all good character evidence of a defendant is pertinent to a case and admissible under FRE 404(a)(1). For a contrasting example recently decided by the D.C. Circuit, see United States v. Harris, 491 F.3d 440, 447 (D.C. Cir. 2007) (“it is familiar ground that while a criminal defendant can put character in issue, the evidence can concern only a ‘pertinent trait of character,’ and even then may be excluded if ‘its probative value is substantially out-weighed by the danger of unfair prejudice’”) (citation omitted).