United States District Court, D. Idaho
AMENDED MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it several motions in limine and other related motions. The Court will address each below.
1. Government's First Motion in Limine
The Government asks the Court to prohibit the defendants from eliciting their own statements from witnesses, as well as from discussing any such statements in voir dire or opening statements. Defendant Hansen did not respond, and Defendant Henery's response seems to concede that he generally cannot offer his own statements through other witnesses because it would be hearsay.
However, Henery seems to suggest that he should be able to offer his own statements through another witness if the statements are only admitted to show intent, motive, etc., and not to prove the truth of the matter asserted. The Court recognizes that there may be circumstances when a statement may be introduced by the defendant as non-hearsay or under an exception to the hearsay rule. But the Court cannot predict all such scenarios pre-trial. Accordingly, the Court's general ruling here is that a defendant cannot attempt to offer his statement as evidence through another witness. If defense counsel believe a hearsay exception applies to a specific statement, counsel may ask for a sidebar to discuss the issue. But counsel should refrain from referencing any such statements without first obtaining a ruling from the Court.
2. Government's Second Motion in Limine
The Government asks the Court to prohibit the defendants from introducing improper character evidence at trial - specifically, evidence of the defendants' specific acts of racial tolerance. Generally, "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed.R.Evid. 404(a)(1). However, the rule makes an exception and provides that in a criminal case, a "defendant may offer evidence of the defendant's pertinent trait." Fed.R.Evid. 404(a)(2)(A).
The Rules also provide guidance as to the appropriate methods of proving character. "When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion." Fed.R.Evid. 405(a). However, when the "person's character or charter trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person's conduct." Fed.R.Evid. 405(b). Given the charge in this case, the defendants' racial tolerance is a pertinent trait, and the defendants may offer evidence of this trait by testimony about their reputation or by testimony in the form of an opinion.
But whether defendants may offer evidence of specific instances of racial tolerance depends upon whether their character or character trait is an essential element of the charge. Fed.R.Evid. 405. The elements of the charge in this case are that the defendants willfully caused bodily injury to Derek Lewis because of Lewis's race or color. The Ninth Circuit requires that when determining whether a defendant's character or character trait is an essential element of the charge for purposes of Rule 405, the Court must conduct an inquiry according to the terms of the Rule itself. U.S. v. Keiser, 57 F.3d 847, 856 (9th Cir. 1995). Keiser cites McCormick on Evidence for the proposition that "[t]he relevant question should be: would proof, or failure of proof, of the character trait by itself actually satisfy an element of the charge, claim, or defense? If not, then character is not essential and evidence should be limited to opinion or reputation." Id.
McCormick reaches this conclusion by indicating that a person's characteristic behaviors may be a material fact that under the substantive law determines rights and liabilities of the parties. McCormick continues by stating that,
[w]hen character has been put in issue by the pleadings... evidence of character must be brought forth. In view of the crucial role of character in this situation, the courts usually hold that it can be proved by evidence of specific acts. The hazards of prejudice, surprise and time-consumption implicit in this manner of proof are more tolerable when character is itself in issue than when this evidence is offered as an indirect indication of how the defendant behaved on a specific occasion. Federal Rule 405 reflects this approach.
E. Cleary, McCormick on Evidence, § 187 (3d ed. 1984). McCormick cites cases involving defamation, negligence, child custody, nuisance, employment discrimination, and civil rights.
Here, a hyper-technical reading of the charge may suggest that racial intolerance is not an element of the charge. However, there is really no fair way to prohibit evidence of the defendant's racial tolerance when the Government intends to use specific evidence of the defendant's racial intolerance or bias in trying to show that he acted "because of" Derek Lewis's race or color. Proving that the defendant acted "because of" Lewis's race or color is essentially proof of racial intolerance, making it an element of the charge.
Moreover, the Court is not altogether clear about the defenses which will be asserted at trial. Accordingly, the Court is unable to rule in advance of trial that the defendants will be categorically precluded from offering evidence of specific instances of racial tolerance in defending against the charges here. However, the Court will expect counsel to raise the issue with the Court outside the presence of the jury before attempting to elicit such testimony from a witness.
3. Government's Third Motion in Limine
The Government asks the Court to prohibit the defense from making any reference at trial, whether through counsel, witnesses, or other evidence, concerning certain matters which the Government contends are irrelevant, misleading, or would support jury nullification. The Government's initial motion focused on excluding (1) arguments about the constitutionality of 18 U.S.C. §249 and related state law, (2) jury nullification, and (3) reference to other violent incidents at the Torch 2 and similar clubs. Jury nullification and the other violent incidents do not seem to be at issue - it appears the defendants do not intend to offer evidence or make arguments about these two issues. Likewise, it appears the defendants do not intend to argue or present evidence that 18 U.S.C. §249 is unconstitutional. Regardless, the Court will not allow evidence or argument on these three matters, and the motion is granted in this respect.
With regard to the related state law matters, the defendants maintain their right to offer evidence and make arguments about how the decision on how to charge defendants may have affected law enforcement's investigation of the incident. This issue is too nuanced for the Court to resolve on a motion in limine. As noted by both sides, the Court must, and will, apply the Federal Rules of Evidence in admitting evidence and allowing argument. The Court will need to address these issues during the trial. Counsel should give the Court ...