Kowal Law Group Logo
law typewriter

Character Evidence, Even of Really, Really Bad Character, Is Not Admissible

Tim Kowal     November 3, 2020

The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that suggested Hazelwood participated in the fraud. But the recording did depict Hazelwood making truly odious racist statements. (As a taste, it revealed Hazelwood as a David Allan Coe fan.)

Defense counsel wisely confirmed he did not wish to open up issues of character.

So, the government came up with this clever idea. The government asked a witness whether Hazelwood was a "good businessman." He was. The government then moved to admit the offensive recording as evidence that, in fact, Hazelwood would and did jeopardize the company's reputation by making the offensive statements, tending to rebut the evidence that he was a "good businessman."

The Sixth Circuit reversed. United States v. HazelwoodNos. 18-6023/6101/6102 (6th Cir. 2020). The Court asks a simple question: Do the statements make it more likely defendant committed fraud? No. Do the statements make it more likely the jury will convict? Yes. Henry Ford, after all, was an excellent businessman, despite being a rabid anti-semite. Fortunately, character flaws do not have a natural correlation with business judgment.

That is why we have rules against character evidence.

The Sixth Circuit explains the other ways character evidence may be properly admitted, such as "proving motive, opportunity, intent," etc. under Rule 404(b)(2). But those did not apply here.

The error in admitting the evidence was prejudicial error because the government's evidence "was not ironclad," and the error left the conviction "in grave doubt."

Judge Donald dissented. Judge Donald thinks Hazelwood's theory that he was too good a businessman to participate in the fraudulent scheme opened the door to the recording of his racist and sexist statements. And that the recording could be admissible under Rule 404(b). And that "jury trials are not antiseptic events," and so even if a close call, the evidentiary ruling does not require reversal.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers."

— H.L. Mencken

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram