🚀 go-pugleaf

The question was:
>D is charged with possession and sale of narcotics.  As part of her 
>defense she offers to testify that she has never been arrested or 
>convicted for anything more serious than a minor traffic violation.  
>Should the prosecutor's objection to this testimony be sustained?

My answer is:
Evidence that D never broke the law is relevant on two grounds.  First, 
it shows that D has a good, law-abiding character.  Therefore, it is less 
likely that she possessed and sold narcotics.  Second, this evidence may 
show that D is in the habit of obeying the law.  Again, if this shows D's 
law-abiding habit (if such a thing exists), she is less likely to be 
guilty of the crime charged.

In general, character evidence offered to prove action in conformity 
therewith on a particular occasion is not admissible.  FRE 404(a).  
Evidence of other acts besides the one charged is not admissible to prove 
character in order to show action in conformity therewith.  FRE 404(b).  
Evidence that D was not arrested or convicted seems like it should 
logically be treated in the same was as evidence that she was arrested or 
convicted would be, in the same way that action or non-action can be an 
element of a substantive crime.  However, I'm not sure if FRE 404(b) does 
apply to evidence that establishes that an act did not occur.  If it 
does, this evidence can't be admitted for its character use.

404(b) would allow the evidence to be admitted "for other purposes, such 
as proof of motive, opportunity, intent, preparation, plan, knowledge, 
identity, or absence of mistake or accident."  Assuming we're treating 
non-acts like acts, should the rule be extended to the complete mirror 
opposite?  That is, evidence that D was not arrested used to show she had 
no motive, no opportunity, etc.?  The rules do not seem clear on this 
issue, perhaps because the probative value of such evidence is so small.  
Under 403, the probative value of proving that D had no prior record 
seems to be outweighed by the dangers of delay or confusion of the 
issues.  If the evidence of no prior arrested were controverted, a 
"mini-trial" could ensue to establish whether in fact D had no prior 
record.  No prior record seems to me to be a factor that the judge should 
take into account at sentencing, but should not be submitted to the jury 
as part of its fact-finding mission for the case at issue.

Evidence of no prior arrests or convictions does not seem to show a habit 
under FRE 406.  The difference between "habit" and "character" is a 
tricky one, but the Advisory Committee's Note states that "adequacy of 
sampling and uniformity of response are key factors."  Or, in McCormick's 
words, "[Habit] describes one's regular response to a repeated specific 
situation."  Obeying the law in the course of ordinary life does not seem 
to fit this definition.  An additional factor that adds content to the 
term "character" is the moral connotation of always obeying the law.  A 
common use of the term "character" is to refer to a person's propensity 
to obey the law.  Thus, D's evidence would not be admissible as proving 
habit under FRE 406.

Anyone else have any thoughts on this?

Fred