From the April 2010 Idaho Observer:

Criminal Law – Part X: Evidence of Bad Character

‘Birds of a Feather Flock Together.’ This well-used phrase encompasses the concept of ‘bad character evidence’ – You must be guilty if those around you are guilty, you must be guilty if you had ever been in trouble, you deserve the reputation of your friends, or the stereotype of your ethnicity or of your name if it ends with a vowel. Use of ‘bad character evidence’ is effectively a Bill of Attainder, tainting or staining someone based upon their prior actions or alleged reputation. Introducing or causing a witness to mention an accused’s prior conviction(s) is considered ‘bad character’ evidence. Such judgment is prejudicial as the jury is unable to objectively view circumstances of the charged offense(s). See Cook v. Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1978).

The presumption of Innocence and Constitutional Due Process guarantees are meant to protect defendants from the use of evidence of bad character. Palko v. State of Connecticut, 302 U.S. 319 (1937), was overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). You can’t put dung back in the donkey. Once the prosecution has shown the accused to have a ‘bad character’ it is nearly impossible to remove the idea of being a ‘bad guy’ from the mind. A prosecutor must limit his comments to admissible evidence. U.S. v. Jenkins, 345 F.3d 928, 941 (6th Cir. 2003); U.S. v. Morrison, 10 Fed.Apx. 275 (6th Cir. 2001).

The advisory committee note to Federal Rule of Evidence 404 b states: "[C]haracter evidence … tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened."

Use of Bad Character evidence "… is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."Michelson v. U.S., 335 U.S. 469, 475-76 (1948); McKinney v. Rees, 993 F.2d 1378, 1385-86 (9th Cir. 1993).

The government poisons the well against established principles of American Jurisprudence, and deprives the accused of a fair trial by focusing attention on whether he/she is ‘bad’ rather than on whether admissible evidence and the belief of the trier of fact support a conviction on the underlying charges. The accused is therefore denied ‘the right to a fair opportunity to defend against the state’s accusations.’ Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683 (1966).

Comments and allegations of ill-repute meant to emotionally charge one’s thoughts are illegal tactics often employed by the government. Use of bad character evidence implicates Due Process, Lesko v. Owens, 881 F.2d 44, 51-52 (3rd Cir. 1989), and is a claim falling under the umbrella of Prosecutor Misconduct. If the prosecutor’s remarks were improper and prejudicial, a mistrial may be granted. U.S. v. Yarbrough, 852 F.2d 1522, Cert. Dn’d 109 S.Ct. 171 (9th Cir. 1988). Otherwise, on appeal, the prosecutor’s conduct must be shown to have been improper, and when the trial is viewed as a whole, in violation of Due Process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); U.S. v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004).

Stay tuned… a discussion on The Confrontational Sixth Amendment is next…

D.M. Sal Salerno
Toledo, Ohio

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