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I’ve not seen such a defense of malfeasance but I would guess this is how it would play out. If an auctioneer was guilty of a crime, the defense could be that we have evidence of him not committing a crime at some other time?

For instance, Auctioneer Henry Head admitted to taking fictitious bids at an auction on January 1, 1836. Why wasn’t his defense of this illegal act that he didn’t take fictitious bids at a few, some, or all other auctions?

I would guess it wouldn’t matter to a judge nor jury (or the Supreme Court of the United States, in this case) if he behaved himself at other auctions, and instead what would matter is that he took fictitious bids at this subject auction.

The counterargument seems to be that if Henry Head didn’t take fictitious bids at some other auction, he didn’t take any fictitious bids at his January 1, 1836 auction. This is of course nonsense, as he did take fictitious bids at this auction.

Maybe this will help with your confusion: Did Henry Head take fictitious bids at his January 1, 1836 auction? He did. Then why would it matter if you had evidence he didn’t take fictitious bids at his July 15, 1835, or April 23, 1837 auctions?

Could Henry Head offer to a judge or jury his otherwise good behavior as circumstantial evidence to imply that his actions are generally proper, despite his actions at his January 1, 1836’s auction? However, this doesn’t change the facts of that day.

To some degree, defendants do offer circumstantial evidence and/or character witnesses in an attempt to sway a judge or jury. These efforts don’t change the crime but strive to paint a more comprehensive picture of this defendant’s entire life, career, or body of work.

Could have Henry Head’s attorneys argued that his good behavior otherwise was exculpatory in that it would be tending to excuse or even justify the alleged fault or guilt of their client? Certainly, some attorneys have argued such more recently.

In summary, if you are accused of improper behavior, and want a successful outcome in court, I would not recommend that your only defense is that you acted properly on some other day or time. However, if that’s all you have, it’s worth a try I suppose.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.