In one sense the rules on using proof of character to explain conduct are simple – no character evidence in civil cases, some character evidence in criminal cases, and when character evidence is allowed it must be limited to the pertinent trait. There are honest murderers, but no non-violent murderers; and there are violent thieves, but no honest ones.
What, then, does one make of the testimony that was offered in a recent prosecution of a police officer charged with murdering a civilian during a traffic stop? The competing versions were simple – the prosecution claimed the officer shot without case and the officer claimed the driver was reaching for a weapon. The charge – manslaughter.
As described in the New York Times, “[d]efense lawyers have sought to paint Officer Yanez as a sympathetic figure, a Minnesota native who became the first in his family to graduate from college and who dreamed of becoming a police officer.” ‘I HAD NO CHOICE,’ MINNESOTA OFFICER TESTIFIES ON SHOOTING, New York Ti,es, June 9, 2017 https://www.nytimes.com/2017/06/09/us/jeronimo-yanez-philando-castile-minnesota-shooting.html?emc=eta1&_r=0
Is that character? If the answer is “yes,” then it was completely out of bounds. The crime of manslaughter in Minnesota occurs “by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another…” What character trait(s) may be pertinent? Carefulness, and probably non-violence. The proffered testimony speaks to neither.
The natural reply is “wait a minute.” This is just background, akin to “what’s your name,” “where are you from,” and “how long have you been a police officer.” Yet those questions are more generic, and this credentialing of the officer went beyond. And if this is permissible credentialing, it also has a character message – this is not the kind of person who would commit a negligent killing. At a minimum, it could not be so argued by the defense in closing.
Is there another basis for admission? A possible argument is to establish a lack of bias, bias in the sense of a prejudice toward certain classes of people. The relevance chain would be as follows – the Officer joined the force to help all people, he did not presume that the driver here [an African-American male] was dangerous, and thus he did not behave in a way that – to turn to the elements of the Manslaughter statute – “create[d] an unreasonable risk and consciously [took] chances of causing death…”
Whether there is a legal basis for this testimony is clearly subject to debate; and if there is some ground for admissibility its use – especially in closing argument – must be cabined. But one more point warrants discussion – how the admissibility determination is to be made.
This testimony came in, apparently, without a pretrial assessment. Thus, the only regulatory tool was the objection. Consider these optics [understanding that this is an imaginary rendering]:
Q: Good Morning. Please tell the jury your name.
A: Officer X.
Q: Officer X, let’s get right to it. Tell the jurors why you shot the deceased.
A: He was reaching for a gun in his waistband, after I told him not to.
Q: Sir, I am going to return to that. But first a bit about your background. Are you a native Minnesotan?
Q: How far did you go in school?
Q: Why did you become a police officer?
What is the jury thinking? This seems like perfectly reasonable information to rely on, and the prosecutor doesn’t want us to hear it? Isn’t this supposed to be a fair trial where we take information and judge what was a split-second event?
The point here is advocacy – either restrict the information to its proper scope and use pre-trial, or run the risk of looking obstructionist and unfair. In the meantime, lawyers [and judges] need to hone their understanding of what is proper character evidence, and how character lurks in credentialing questions.