Thursday, February 12, 2009

So, which is it, finally -- a character trait or a motive?

Is "prejudice toward a group" or, alternatively, for example, racial prejudice, a character trait or is it a motive -- for purposes of the prohibition against the use of character to show conduct on a particular occasion? The following is a case that views alleged prejudice by a plaintiff toward White police officers as a group as a character trait (and a case that thus proclaims, in part for this reason, that acts -- prior lawsuits -- allegedly showing such "prejudice toward a group" are inadmissible): Outley v. City of New York, 837 F.2d 587, 591-594 (2d Cir. 1988)("The City, contending that its questions about prior lawsuits were designed to impeach Outley's credibility and to show his bias toward white police officers, reminds us that evidence admissible for one purpose is not rendered inadmissible by a separate rule which would preclude it. United States v. Abel, 469 U.S. 45, 56, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984)."; "The Court's reasoning in Abel is not applicable here. In effect, the City argues that it introduced the evidence to show that Outley bears a grudge against white police officers and that he acted consistently with that grudge in filing the claims in issue. This strikes us as precisely the sort of use prohibited by Rule 404(b), as going to character rather than bias. This is different, of course, from a case where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the prior lawsuits amounted to a fraudulent pattern, evidence lacking here. [paragraph break] So saying, we recognize that there are a few cases permitting cross-examination concerning "prejudice toward a group," even without reference to the witness's specific prejudice against a particular witness or party. See United States v. Kartman, 417 F.2d 893, 897 (9th Cir. 1969) (reversing conviction of anti-draft demonstrator for, inter alia, denial of opportunity to cross-examine arresting officer, an ex-Marine, as to bias to anti-draft demonstrators as a group) (citing Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144, 146 (1949) (plaintiff's witness cross-examined as to prejudice against Negroes, defendant being a Negro); Magness v. State, 67 Ark. 594, 50 S.W. 554, 59 S.W. 529 (1899) (prosecution witness cross-examined as to expression of hatred against Africans); see also People v. Christie, 2 Abb. Pr. 256, 259, 2 Park. Cr. R. 579, 583 (N.Y.S. Ct. 1st D. 1855) (witness cross-examined on membership in secret society); United States v. Lee Huen, 118 F. 442, 463 (N.D.N.Y. 1902) (no presumption of witness bias in favor of defendant of same nationality) (dictum)). These cases fall within the general rubric that "a partiality of mind is . . . always relevant as discrediting the witness and affecting the weight of his testimony." See 3A Wigmore on Evidence § 940, at 775 (Chadbourn rev. 1970). [paragraph] But, while it may have some relevance, there are still limitations on this type of cross-examination.")

Other cases, however, seem to take the opposite view. See, e.g., Barnes v. City of New York, 296 A.D.2d 330, 745 N.Y.S.2d 20 (2002) (civil rights action against city and police officer for shooting of plaintiff by city's police officer; "During the trial of this action, defendants sought to introduce evidence that plaintiff was a member of a group known as the "Five Percenters," which espouses a vicious ideological hatred of the police and propounds to its members a protocol to shoot and kill police officers rather than submit to arrest. n1 The trial court excluded this evidence on the ground that it was collateral and unfairly prejudicial, and the jury resolved factual issues in favor of plaintiff, rendering a verdict for him. We now hold that, contrary to the trial court's view, exclusion of such evidence constituted reversible error requiring that there be a new trial."; "Evidence of plaintiff's membership in the Five Percenters, under the circumstances presented here, was relevant to show that he had a specific motive to resist any police officer's attempt to arrest him, giving rise to the fair inference that plaintiff was likely to act in accordance with such motive in his encounter with Officer Jerome.")

So which is it? Is prejudice against a group a character trait that arguably inclines the hater toward a particular action or is it a motive for an action? The distinction implied by the question may seem ethereal but the answer to the question affects the admissibility of evidence of prejudice toward a group.

My thanks to Joannes Untalan Vinarao-Pilapil for unearthing Outley.

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