United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the government's Motion
to Preclude Inadmissible Character Evidence and Hearsay. Doc.
62. In the Motion, the government requests an order
prohibiting Mr. Perrault from offering inadmissible character
evidence at trial, pursuant to Rule 404 of the Federal Rules
of Evidence, and from offering inadmissible hearsay evidence,
pursuant to Rule 802. Id. Mr. Perrault filed a
Response [Doc. 68], and the government then filed a Reply
[Doc. 69]. Having considered the Motion, relevant law, and
being otherwise fully informed, the Court finds that the
government's Motion is well-taken and will be
GRANTED on the issue of character evidence.
The Court will reserve ruling on the hearsay matter until
January 29, 2019 the government filed the instant Motion
requesting that the Court enter an order prohibiting Mr.
Perrault from offering inadmissible character evidence under
Rule 404 or inadmissible hearsay evidence under Rule 802.
Doc. 62 at 1. Defense indicated to the government that he
planned to call D.P., an employee of St. Bernadette's in
Albuquerque. Id. On June 29, 2017, FBI agents
conducted an interview of D.P. Id. at 2. On January
4, 2018, defense counsel and an investigator for the defense
interviewed D.P. Id. During these interviews, D.P.
made statements regarding Mr. Perrault, describing him as
“always professional, ” and stating that he was
“surprised” by the allegations of sexual abuse
and did not “suspect” or have an
“inclination” that any abuse was taking place.
Id. During the interview with the Defense's
investigator, D.P. also stated that John Doe's mother
told D.P. that John Doe told her that Mr. Perrault never
abused John Doe. Id. at 3.
government argues that Rule 404 does not permit Mr. Perrault
to offer evidence of specific instances of good character in
support of his defense at trial. Id. at 3-4.
Specifically, it argues that the Court should not permit Mr.
Perrault from offering character evidence that does not
relate to a pertinent character trait and that is not in the
form of opinion or reputation testimony. Id. at 4
(citing Fed.R.Evid. 404, 405). It also argues that Mr.
Perrault should not be permitted to offer testimony or other
evidence of specific instances of his good character,
“as a law-abiding person or otherwise.”
Id. With respect to hearsay, the government sets
forth that hearsay is generally inadmissible and that a party
may not offer its own self-serving hearsay statements as
evidence at trial. Id. The government argues that
the statements D.P. provided to investigators are hearsay
that do not fall within any exception. Id. at 5.
With respect to D.P.'s statement to the FBI that Mr.
Perrault told him that he [Mr. Perrault] did not engage in
any “inappropriate behavior, ” the government
argues that Mr. Perrault would have to take the witness stand
and submit to cross-examination if he wishes to put his
exculpatory statements before the jury. Id. at 5-6.
Response, Mr. Perrault “agrees that the information
contained in the FD-302 regarding his character cannot be
introduced.” Doc. 68. With respect to the hearsay
issue, Mr. Perrault argues that the statement that John
Doe's mother made to D.P. is admissible pursuant to Rule
804(a)(4). Id. at 3. However, he requests that the
Court reserve its ruling on the admissibility of hearsay
evidence until trial, after the opening statements.
Id. He also suggests that the scope of the direct
examination of D.P. may be related to John Doe's
cross-examination. Id. Accordingly, he requests that
the Court does not rule on the hearsay evidence until trial.
government's Reply, it requests that the Court grant its
motion to preclude on the issue of character evidence as
unopposed. Doc. 69 at 1-2. The government also mistakenly
addresses Mr. Perrault's argument that he should be
permitted to introduce the hearsay statements under Rule
804(b)(4). Id. at 2. However, the Court notes that
his argument is that the statement from John Doe's mother
to D.P. should be admissible pursuant to Rule 804(a)(4) as an
Rule 404, a party may not offer evidence of a person's
character or character trait “to prove that on a
particular occasion the person acted in accordance with the
character trait.” Fed.R.Evid. 404(a)(1). However, there
is an exception in criminal cases permitting a defendant to
offer evidence of his or her own pertinent trait. Fed.R.Evid.
404(a)(2)(A). “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). It is only on cross-examination that the inquiry into
relevant specific instances of the person's conduct is
permissible. Id. If the Court admits such evidence,
the prosecutor may offer evidence to rebut it. Fed.R.Evid.
Tenth Circuit has noted that, while propensity evidence is
generally not allowed, this general rule does not apply when
the defendant in a criminal case “seeks to offer
evidence of his good character to imply that he is unlikely
to have committed a crime.” United States v.
Yarborough, 527 F.3d 1092 (10th Cir. 2008). However,
evidence of a person's character or character trait may
only be proved by relevant specific instances when that
character or character trait is “an essential element
of a charge, claim, or defense.” Fed.R.Evid. 405(b).
the parties appear to be in agreement that the information
contained in the investigators' reports are not
admissible as character evidence. Therefore, it appears that
testimony from D.P. that Mr. Perrault was “always
professional” will not be admitted. Should the parties
determine that they wish to introduce character evidence, it
must comport with the limitations set forth in the Federal
Rules of Evidence.
is any out of court statement that is offered in evidence to
prove the truth of the matter asserted in the statement.
Fed.R.Evid. 801(c). Hearsay is generally inadmissible unless
it is expressly permitted by a federal statute, the Federal
Rules of Evidence, or other rules prescribed by the Supreme
Court. Fed.R.Evid. 802. Mr. Perrault has asserted that the
statement made by John Doe's mother to D.P. regarding
what John Doe told her will be admissible pursuant to Rule
804(a)(4) [see Doc. 68 at 3], which provides for an
exception to the rule against hearsay where the declarant is
unavailable due to death or an illness. As ...