The Case Before Us, Part 6.

Rule of evidence 403 comes before Rule 404(b) and thereby presents to every judge a “threshold” question of admissibility.

Therefore, no evidentiary ruling bearing on admissibility of testimony or documentary evidence should be viewed as complete based on the partial analysis of the applicability of a single or isolated rule of evidence. More than one rule may apply.

In permitting the Defense in State of Minnesota v. Derek Chauvin to offer a video of a prior encounter between Minneapolis police and George Floyd, the court risks putting a decedent on trial for conduct not presently before the court.

The use of evidence of a victim’s character is nearly categorically excluded by nearly every regime of American evidence — as is the case in Minnesota state courts. In our jurisprudence we don’t like the idea of proving the facts by prior instances of our human behavior — however flawed.

But like nearly everything else in the law, there are valid exceptions. But the exceptions must be based on valid reasons narrowly defined.

Thus, while character evidence is generally inadmissible, the courts have allowed prior bad acts to show certain things unable to be proved in any other way. The most common thing proven is the modus operandi of an otherwise hard to identify accused criminal.

This makes the use of the prior arrest of George Floyd by Minneapolis officers a full year before the death-dealing episode of 2020 all the more troubling. For it seems it’s only purpose is to present the jury with the notion that perhaps George Floyd committed the same flawed behavior in 2020 as alleged in 2019 — attempting to swallow illicit substances.

The threshold before this evidence can be offered has, in my view, been woefully ignored — and that threshold is relevance.

Before a court reaches its analysis under the character evidence “exceptions” of 404(b) it must determine if evidence is relevant under Rule 403.

This analysis is deeper than deciding the testimony relates to the case somehow — it also requires a judge to decide that the evidence will not unfairly mislead the jury about what is sought to be proved by it.

But this evidence will likely do just that: mislead the jury.

It is highly likely the jurors will not be told that Derek Chauvin had no knowledge of George Floyd’s 2019 arrest with Minneapolis police or any of the events or circumstances surrounding it. Derek Chauvin needs never take the witness stand in this trial or be subject to cross-examination, at all.

Yet, the Defense will be all too happy to leave the jurors — the judges of the facts — with the impression that Derek Chauvin fashioned his response to George Floyd based upon prior conduct — or prior character — unknown to Derek Chauvin.

The failure to look to Rule. 403. before Rule 404 could lead to a tragic miscarriage of justice. And, this the Rules of Evidence and the Law should not allow.

-Albert Turner Goins