Character evidence win

Robert R. Nigh, Jr. and Clark O. Brewster won in U.S. v. Yarbrough, No. 06-5229 (10th Cir. June 3, 2008), getting a new trial in a Oklahoma federal prosecution for obstructing an official proceeding and providing unlawful notice of a search or seizure warrant. The main issue was whether the district court improperly excluded good character evidence:

Yarbrough sought to introduce at trial character evidence of his integrity and status as a law-abiding, trusted police officer, pursuant to Federal Rules of Evidence 404(a)(1) and 405. He asserted evidence of his law-abiding nature was directly relevant to the charges at issue, which alleged he corruptly impeded and conspired to corruptly impede an investigation, as well as unlawfully and willfully provided notice of the existence of a search and seizure warrant to prevent the execution of such warrant. The district court excluded Yarbrough character witnesses 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.”

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.” 1 McCormick on Evidence § 191 (Kenneth S. Broun, ed., 6th ed. 2006).

Despite the plain language set out above, the district court excluded character evidence 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. We cannot discern in Rule 404(a)(1) the distinction announced by the district court. Instead, in a remarkably similar situation, this court has recognized that such evidence is not only relevant, but also vitally important.

So Mr. Yarbrough gets a new trial. I've always said it's good to represent a cop on appeal.