Intersection Of FRE 404 And 405 Standards

In a resisting arrest prosecution, excluding defendant's evidence of arresting officer's character for violence (namely, tribal resolutions describing the officer's misconduct and asking for investigation or removal) because the evidence was not admissible: (1) as evidence of the defendant's state of mind under FRE 401(a)(2) (victim's character as proof of a defendant's state of mind "is not one of the purposes encompassed within" the rule); (2) Under FRE 404(b) as evidence of prior bad acts to show defendant's state of mind absent proof of defendant's prior knowledge of the officer's character, and (3) because the form of the proffered evidence was not in the form of opinion evidence as required under FRE 405(a) (admission of opinion evidence on issue of officer's character, rather than of prior bad act), in United States v. Drapeau, __ F.3d __ (8th Cir. July 8, 2011) (No. 10–2159)

In general, FRE 405(a) is a rule that concerns the form of evidence admitted under FRE 404(a) about the character of the victim. The two rules must be used in sequence, with both needing to be satisfied for the evidence to be admitted. In a recent case, the Eighth Circuit explored the interrelationship between FRE 405 and FRE 404. The circuit's discussion of the relationship the the rules provides an illustrative application of the two rules in tandem.

In the case, defendant Drapeau was tried for resisting a federal officer resulting in bodily injury. He was convicted. He appealed alleging that the trial judge erred by improperly excluding the character evidence he proffered about the alleged victim of his crime, officer Mousseau of the Bureau of Indian Affairs. The charged incident occurred as Drapeau was being pursued by officers after they observed thast he seemed to be avoiding them. Responding to the call for assistance in locating Drapeau, the officer went to the Drapeau residence. There he attempted to gain entry into the residence.

According to the circuit, the defendant's charged crime occurred after Officer "Mousseau failed to gain entrance through the front door [of defendant's residence], he broke the screen off the front window. As Mousseau put his right arm through the window, [Defendant] Drapeau pressed the window downward against Mousseau's arm, injuring it." Drapeau, __ F.3d at __. The incident ended as the officer caught up with the defendant as he fled the residence.

At trial, the defendant sought to "present evidence of Mousseau's character" for violence. This evidence consisted of:

  • a "resolution ... written by the Nebraska Winnebago Tribe in 2005, describing Mousseau's misconduct and requesting his permanent removal as a police officer," resulting in the officer's transfer to the Crow Creek BIA
  • a "memo to [U.S.] Senator Thune" from "a Crow Creek Sioux Tribe civil rights group request[ing] an internal investigation of Mousseau and the police department" because of misconduct
  • six resolutions by the "Crow Creek Sioux Tribal Council ... in response to numerous complaints against Mousseau," requesting the officer's "removal" from the Crow Creek Sioux Indian Reservation.
Drapeau, __ F.3d at __.


The trial judge preliminarily denied admitting this evidence under FRE 404(b)(2); but the court did comment that it might admit some of the evidence as FRE 404(b) evidence (e.g., "four resolutions " regarding victim's misconduct, but only if Drapeau testified that he was aware of them" at the time of the incident). This the defendant failed to do and the evidence was not admitted, except for an offer of proof outside the hearing of the jury, for purposes of the record.

On appeal, the circuit noted that the defendant had altered his theory for admission. The circuit concluded that the evidence was not admissible under FRE 404 governing the circumstances for admission of evidence, and even had it not been excluable under FRE 404, it would still be inadmissible under FRE 405(a) as was not in the form of opinion or reputation evidence, rather than specific incidents of misconduct.

Inconsistent With FRE 405(a)

The circuit rejected the defendant's theory for admission of the evidence, explaining:

Assuming for the purposes of argument that Drapeau in fact presented the tribal resolutions and memo for the purpose of showing Mousseau was the first aggressor, his failure to present evidence of his prior awareness would not have been grounds for excluding that evidence. The evidence would still have been inadmissible under Rules 404(a)(2) and 405(a), however, because it was not in the proper form of witness testimony. Accordingly, any error in requiring evidence of Drapeau's pre-incident knowledge would not have affected Drapeau's substantial rights because the tribal resolutions and memo would have been excludable pursuant to Rule 405(a).
Drapeau, __ F.3d at __ (citing United States v. Keiser, 57 F.3d 847, 854 (9th Cir.1995); (“Thus, whether the defendant knew of the victim's character at the time of the crime has no bearing on whether victim character evidence should come in under [Rule] 404(a)(2).”).).

Excludable Under Trial Judge's FRE 404(b) Theory

After rejecting the grounds advanced by the defendant for admission of the victim officer's character evidence, the Circuit also rejected the reasons given by the trial judge for excluding the evidence. The circuit noted "it was understandable why the district court was under the impression that Drapeau was actually seeking to present the evidence pursuant to Rule 404(b), not Rule 404(a)(2) as he had recited. " Drapeau, __ F.3d at __ (footnote omitted)

The circuit explained that admissibility of the evidence as specific incidents to prove the defendant's state of mind was admitted under restricted circumstances under FRE 404(b), as "Drapeau would have been required to present evidence that he had pre-incident knowledge of the evidence." Drapeau, __ F.3d at __ (citing United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (defendant's state of mind ans well as the reasonableness of the defendant's use of force was admissible under FRE 404(b)); United States v. Bordeaux, 570 F.3d 1041, 1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible under Rule 404(b) to establish the defendant's state of mind and the reasonableness of the defendant's use of force.”); United States v. Scout, 112 F.3d 955, 962 n.7 (8th Cir. 1997) ( “[The defendant] testified that he did not know the identity of the police officers pursuing him. Because [the officer's] alleged reputation for violence could therefore not have affected [the defendant's] state of mind when assaulting [the officer], [the officer's] reputation—and how it was derived—was irrelevant.”))

The failure of the evidence under an FRE 404(b) theory was that the defendant failed to present any evidence to the contrary that the defendant did not have "pre-incident knowledge of Mousseau's reputation and the tribal resolutions. However, during the hearing outside the presence of the jury, [Drapeau's wife] Medicine Crow testified that Drapeau had not known of the resolutions before the incident. Drapeau failed to present any evidence to the contrary, and he does not pursue this theory on appeal. Accordingly, we need not further address whether the district court erred in excluding the tribal resolutions and memo under Rule 404(b)." Drapeau, __ F.3d at __ .

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