                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-8730.

                             Michael SCHAFER, Plaintiff-Appellant,

                                                  v.

                                TIME, INC., Defendant-Appellee.

                                            June 8, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (no. 1:93-CV-
833-WBH), Willis B. Hunt, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

       BIRCH, Circuit Judge:

       This diversity case requires us to parse the often conflicting and confusing concepts of

malice as they have evolved in Georgia's libel laws. After instructing the jury on the applicable law

and receiving a subsequent request to define "malicious defamation," the district court instructed the

jury that before the plaintiff-appellant could recover for libel he had to show that the

defendant-appellee made a "statement deliberately calculated to injure." We REVERSE the district

court on this issue and REMAND this case for a new trial.

       This appeal also presents a number of evidentiary questions, most notably whether specific

instances of misconduct are admissible to prove character under Federal Rule of Evidence 405(b)

in an action for libel under Georgia law. The plaintiff-appellant challenges the district court's

decision to admit character evidence pursuant to Rule 405(b), as well as its decision to exclude


   *
     Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
evidence under Federal Rule of Evidence 403 on the grounds that its prejudicial effect substantially

outweighed its relevance. Although these evidentiary issues are not dispositive given our decision

to reverse the district court on the grounds mentioned above, they may well arise at a second trial.

Accordingly, we discuss these and a number of additional questions raised in the parties' briefs in

an effort to guide the district court and the parties at retrial.

                                           BACKGROUND

        On December 21, 1988, Pan Am Flight 103 exploded in mid-flight over Lockerbie, Scotland,

causing the death of everyone on board. A terrorist's bomb was then, and is now, widely suspected

to be the source of that explosion. On April 20, 1992, defendant-appellee, Time, Inc. ("Time"),

published a cover story entitled "The Untold Story of Pan Am 103." The article purported to debunk

the then-prevailing theory that the government of Lybia had sponsored the attack on Pan Am 103.

Instead, the article posited that a Palestinian group, with connections to Syrian drug traffickers, had

targeted Pan Am 103 to eliminate several of the passengers who were members of a United States

counter terrorism team attempting to rescue United States hostages in Lebanon. The article claims

that these passengers had discovered an unsavory, covert relationship between the Syrian drug

traffickers and a unit of the United States Central Intelligence Agency and intended to expose it

upon their return to the United States.

        The article further stated that an American agent, David Lovejoy, had become a double agent

and had leaked information regarding the team's travel plans to forces hostile to the United States.

The article included a photograph of a man identified by the following caption:

        David Lovejoy, a reported double agent for the U.S. and Iran, is alleged to have told Iranian
        officials that McKee [one of the U.S. agents] was booked on Flight 103.




                                                    2
See Schafer R. Excerpt 1, Exh. A at 31. The article went on to imply that the information Lovejoy

disclosed to hostile forces led to the attack on Pan Am 103.

        The photograph in question apparently became associated with the Pam Am 103 bombing

in connection with a civil case filed by the families of the Pan Am 103 victims. The families' law

suit claimed that Pan Am had failed to take adequate security precautions to prevent the bombing.

One of Pan Am's lawyers in that case, James Shaughnessy, filed a sworn affidavit that contained a

variety of assertions about the attack that he hoped to explore through discovery in the Pan Am

litigation. Shaughnessy's affidavit alleged that unnamed sources had identified Lovejoy, the double

agent whose treachery facilitated the attack on Pan Am 103, as the man in an attached photograph.

The man in the photograph, however, is Michael Schafer, the plaintiff-appellant in this case. Time's

article, therefore, erroneously identified Schafer, then working in his family's janitorial business in

Austell, Georgia, both as a traitor to the United States government and a player in the bombing of

Pan Am 103.1

        Upon discovering his picture in the magazine, Schafer demanded and eventually received

a retraction from Time. Schafer filed suit against Time, making claims under Georgia's libel laws.

A jury returned a verdict in Time's favor, finding no liability for the error. After filing a motion for

a new trial, which the district court denied, Schafer filed this timely appeal. Schafer challenges a

number of the district court's evidentiary rulings as well as the court's recharge to the jury on the


   1
    The record in this case provides no definitive explanation of how Shaughnessy obtained
Schafer's picture or how Schafer became identified as David Lovejoy. At trial, Schafer
speculated that Lester Coleman, named as a source in the Time article, provided the picture to
Pan Am's team of investigators and lawyers. Schafer worked with Coleman in Beirut, Lebanon
in 1985, when they were both employed by the Christian Broadcast Network, and testified that
he provided Coleman with a number of pictures of himself in the course of his employment
there.

                                                   3
definition of "malicious" under Georgia's libel statute. He also challenges both the district court's

refusal to instruct the jury that the republication of a libelous depiction constitutes libel under

Georgia law and the court's decision not to charge the jury on Georgia's retraction statute.

                                           DISCUSSION

I. Jury Instructions

A. The District Court's Recharge on the Issue of Malice

       After trial, the court instructed the jury on the elements of libel under Georgia law. The

instructions included a recitation of Georgia's statutory definition of libel:

       [A] libel is a false and malicious defamation of another expressed in print, writing, pictures
       or signs, tending to injure the reputation of the person and exposing him to public hatred,
       contempt or ridicule.

R26 at 1534 (quoting O.C.G.A. § 51-5-1(a)) (emphasis added). The instructions proceeded to

explain the various elements of libel and correctly instructed the jury that it need find, by a

preponderance of the evidence, only that Time failed to exercise ordinary care in ascertaining

whether the information it published was true or false before it could find in Schafer's favor.

       After describing these elements, the district court instructed the jury on the plaintiff's claims

for compensatory and punitive damages. One of Schafer's theories for compensatory damages

allowed the jury to presume damages but required a clear and convincing showing of "actual

malice." The court instructed the jury that:

       A publication is made with actual malice if it is made with knowledge that it is false or with
       reckless disregard of whether it is false or not. In order to demonstrate actual malice, the
       plaintiff must demonstrate more than just negligence by a preponderance of the evidence.
       He must prove by clear and convincing evidence that the challenged libel was made by the
       defendant with knowledge that such statements were false or that the defendant acted with
       reckless disregard of their falsity. Reckless disregard is a high degree of defendant's
       awareness of the probable falsity of the statements made.


                                                  4
Id. at 1539. The court also instructed the jury that it could not award punitive damages against Time

unless it found "actual malice" as defined above.

        The instructions, therefore, referred to the concept of malice in two different contexts: first,

to describe the character of the defamatory statement and, second, to describe the lack of care the

defendant employed in ascertaining the truth of the statement at issue. Consequently, the jury found

itself in some confusion as to the use of malice in the instructions and asked the trial court to explain

its use in Georgia's statutory definition of libel. The district court answered the jury by attempting

to distinguish a "malicious statement" from the concept of "actual malice" as it appeared in the

instructions on damages.

                Malicious, as used in this particular paragraph ..., is not the same as the term actual
        malice, which is defined for you in connection with Mr. Schafer's claim that injury to his
        reputation should be presumed. Instead, as used here, it, along with the word false that
        precedes it, describes the character of a defamation that is libelous. It denotes statements
        deliberately calculated to injure. In all actions for defamation, this type of malice may be
        inferred from the character of the charge but it may be rebutted by proof.

Id. at 1569-70 (emphasis added). After receiving this instruction, the jury resumed its deliberations

and returned a verdict within the hour, deciding that Time was not liable to Schafer for libel.

Schafer contends that the district court's re-charge, particularly the phrase "deliberately calculated

to injure," misled the jury by improperly requiring them to find that Time actually intended to injure

Schafer by publishing the photograph in order to find liability.2


   2
    Schafer's appeal is limited to the trial court's response to the jury's question. See App. Reply
Br. at 3. Despite Time's disingenuous statements to the contrary, Schafer did not waive this issue
on appeal either by suggesting the contested language to the district court or by failing to make
his objection known to the district court. In this case, during a discussion of the issue at hand,
the district judge began to discuss a particularly relevant case and one of Schafer's lawyers
responded that the case was Straw v. Chase-Revel, Inc. See R26 at 1562. Although rules of
procedure occasionally have the unfortunate result of serving as "traps for the unwary," see
United States v. Pool, 660 F.2d 547, 558 (5th Cir. Unit B, 1982), we would be loath to hold that

                                                   5
        The trial court took the wording of its recharge to the jury directly from our decision in

Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.1987). In that case, we examined the issue of

punitive damages awarded for a defendant's violation of Georgia's libel laws and noted that the First

Amendment to the United States Constitution prohibited the award of punitive damages in a

defamation case absent a showing of "actual malice." Id. at 360-63 (citing New York Times Co. v.

Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Gertz v. Robert Welch, Inc., 418

U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). In that context, we undertook to explain the

difference between "actual malice" as defined in the Supreme Court's cases and "common law

malice" as it appears in section 51-5-1. Id. We explained that "actual malice" referred to the

speaker's actual or constructive knowledge regarding the truth of the statement.3 We then explained

that "malicious," as it appears in section 51-5-1, refers to the defendant's statement, and that it

requires that statement to be of the type "deliberately calculated to injure." Id. at 362 (citing

Williams v. Trust Co. of Georgia, 140 Ga.App. 49, 56, 230 S.E.2d 45, 51 (1976)).

        Although the Straw decision correctly states the law in Georgia, we acknowledge that it does

so in a confusing manner. The confusion arises because a private plaintiff may recover for libel

under Georgia law without proving an intentional tort. See Triangle Publications, Inc. v. Chumley,

253 Ga. 179, 181, 317 S.E.2d 534, 536 (1984) ("an overwhelming majority of the state courts which



a litigant who provides the name of the case under discussion to the court thereby foregoes the
right to object to the court's decision to apply that case. The record shows that Schafer clearly
communicated his position on this issue to the district court and that, after the judge gave the
instruction to the jury, both parties noted their exceptions to the charge as previously stated
during argument. See R26 at 1571.
   3
    As noted above, "actual malice" refers to whether the defendant either knew the statement
was false or published it with a reckless disregard of whether it was false or not. Straw, 813 F.2d
at 361.

                                                 6
have addressed the question have held that a private figure plaintiff may recover for defamation on

a showing of negligence on the part of the speaker or writer.") (emphasis added). Any language

demanding a calculation to injure appears to conflict with this negligence standard by suggesting

that the plaintiff must show that the defendant, motivated by some ill-will or "intentional hostility,"

actually sought or intended to injure the plaintiff.

        As the Straw court explained in a footnote, however, there is no such conflict in the law

because the term malicious modifies only the statement at issue; the defendant's subjective state of

mind or intentions towards the plaintiff are irrelevant at this point in the jury's analysis. See Straw,

813 F.2d at 356 n. 8; Van Gundy v. Wilson, 84 Ga.App. 429, 438-39, 66 S.E.2d 93, 101 (1951).

Any statement can be malicious in the sense that it is of a type calculated to injure, regardless of how

the writer feels towards his subject, if it suggests injurious (or, more plainly, bad) things about the

subject to the ordinary reader. By contrast, not everything that comes from the pen of a writer who

harbors a deep and personal hostility toward the subject need be of a type calculated to injure. The

Straw court's explanations and limitations on the applicability of common law malice in section 51-

5-1 are consistent with Georgia's cases that dismiss the defendant's private intentions towards the

plaintiff as irrelevant in the defamation context. See Brooks v. Stone, 170 Ga.App. 457, 458, 317

S.E.2d 277, 279 (1984) aff'd 253 Ga. 565, 322 S.E.2d 728 (1984) (" "In an action for defamation it

is immaterial what meaning the speaker intended to convey. He may have spoken without any

intention of injuring another's reputation, but if has done so he must compensate the party.' ")

(quoting Southeastern Newspapers v. Walker, 76 Ga.App. 57, 61, 44 S.E.2d 697, 701 (1947)).

Indeed, in the typical case common law malice is presumed from the character of the defamation at

issue and may only be rebutted on the issue of damages or to establish the defense of privilege. See


                                                   7
O.C.G.A. § 51-5-5; Montgomery v. Pacific Southern Co., 131 Ga.App. 712, 717, 206 S.E.2d 631,

635 (1974)("As to proof of malice, proof that the writing is false, and that it maligns the private

character ... of another, is itself evidence of legal malice.") (emphasis omitted), overruled on other

grounds by, Diamond v. American Family Corp., 186 Ga.App. 681, 368 S.E.2d 350 (1988).

        Moreover, only by rejecting the notion that the use of the word "malicious" in section 51-5-1

requires a showing that the defendant intended to harm the plaintiff, can we reconcile the language

in Straw with our subsequent decision in Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304

(11th Cir.1990). In that case, the district court instructed the jury that, as a matter of law, there was

no evidence that the defendant in making the defamatory remark had acted with spite or ill-will

towards the plaintiff. Id. at 1320. Nevertheless, we upheld the jury's decision to hold the defendant

liable for slander and its award of punitive damages, because the defendant's state of mind was

irrelevant to the concept of malice in either context. Significantly, after discussing "actual malice"

we wrote that "common law malice is presumed from the character of the defamatory statement and

has nothing to do with the defendant's state of mind." Id. (emphasis added).

        Unfortunately, our use of the phrase "deliberately calculated to injure" to define "malicious"

as it appears in section 51-5-1, in Straw and Simon, has tended to obfuscate rather than clarify

Georgia law on this issue.4 The natural and plain connotation of the phrase "deliberately calculated

to injure" suggests that the jury must find that the defendant subjectively intended to injure the

plaintiff as a prerequisite for liability. Without the benefit of the attendant explanations and

limitations described at length above, the definition is incomplete and misleading. The trial court's


   4
    The district court noted precisely this point below: "The law of defamation is by any test
confusing and precious little has been done by the courts, trial or appellate, to fix understandable
instructions." R13-134 at 2 n. 1.

                                                   8
instruction to the jury in this case, although literally accurate, in the context presented here, failed

to properly guide the jury in its deliberations and likely resulted in a legally misguided verdict.

        Our review of a district court's charges to the jury is deferential, and the trial judge is

entitled to wide discretion over the style and wording employed as long as the instructions

accurately reflect the law. See Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir.1997)

(per curiam). We must examine " "whether the jury charges, considered as a whole, sufficiently

instructed the jury so that the jurors understood the issues and were not misled.' " Id. (quoting

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir.1991)). Finally, we will

reverse the district court only if "we are "left with a substantial and ineradicable doubt as to whether

the jury was properly guided in its deliberations.' " Id. (quoting Johnson v. Bryant, 671 F.2d 1276,

1280 (11th Cir.1982)).

        As noted above, there can be no doubt that the trial court's instructions on this issue were

faithful to the language of our opinion in Straw. Nevertheless, as that language, standing alone

without lengthy explanation, carries with it a powerful tendency to mislead and confuse even those

experienced in the law of libel, we cannot say that the charge, as modified by the re-charge,

adequately focused the jury's attention on the proper factual issue. As the Georgia Court of Appeals

recently observed in a similar libel case, an instruction " "which confuses the issues in the case and

injects into the case issues not made by the pleadings or the evidence is presumptively harmful to

the losing party.' " Davis v. Shavers, 225 Ga.App. 497, 501, 484 S.E.2d 243, 248 (1997) (internal

quotation marks omitted). The jury's question on this point and its subsequent decision, in obvious

reliance on the court's re-charge, serves only to underscore the concerns voiced above. As a result,

we are left with "an ineradicable doubt" that the jury found for the defendant because the plaintiff


                                                   9
had not proved Time deliberately intended to injure him. Accordingly, we reverse and remand this

case for a new trial.5 Although our disposition of this issue resolves this appeal, we address

Schafer's remaining challenges to the jury instructions to assist the district court and the parties when

these issues inevitably are resurrected upon retrial.

B. Refusal to Instruct the Jury on Republication

        Next, Schafer challenges the district court's decision not to include his proposed instruction

that the unprivileged republication of a libelous statement may constitute libel under Georgia law.

We review a district court's refusal to include a requested jury instruction for an abuse of discretion.

See United States v. Condon, 132 F.3d 653, 656 (11th Cir.1998).

        A defendant's republication of a libelous statement is a tort under Georgia law, "independent

and separate from the first publication." Peacock v. Retail Credit Co., 302 F.Supp. 418, 421

(N.D.Ga.1969), aff'd, 429 F.2d 31, (quoting Howe v. Bradstreet Co., 135 Ga. 564, 565, 69 S.E. 1082,

(1911)). Liability in such a situation, of course, requires the plaintiff to show that the defendant's

republication of the libelous statement itself satisfies all the elements of the tort of libel, independent

and apart from the actions of the original act of libel. Cf. Howe, 135 Ga. at 565-66, 69 S.E. 1082

(distinguishing between joint-publishers and a republisher). In this case, therefore, Schafer must

prove that Time published his photograph without exercising reasonable care as to whether it had



   5
    As a result, we decline to address the merits of Schafer's related but undeveloped suggestion
that an instruction on the issue of malice is misplaced when the plaintiff has shown libel per se.
Compare Rosanova v. Playboy Enter., Inc., 411 F.Supp. 440, 445 (S.D.Ga.1976) aff'd 580 F.2d
859 (5th Cir.1978) ("Libel per se is a publication charging that one is guilty of a crime,
dishonesty or immorality. To be actionable the statement must be both false and malicious.")
with Davis, 225 Ga.App. at 500-01, 484 S.E.2d at 247-48 (implying, without supporting
authority, that an instruction on common law malice was inapplicable to a case involving libel
per se ).

                                                    10
correctly identified the man in the picture as David Lovejoy; presumably it would be insufficient

to rely on the negligence of the person who filed the affidavit in the Pan Am case.

        Georgia's statutes provide an affirmative defense of privilege when the libel defendant's

statement constitutes a "fair and honest" report of judicial bodies or court proceedings. See

O.C.G.A. § 51-5-7(5 & 6); Atlanta Journal Co. v. Doyal, 82 Ga.App. 321, 328, 60 S.E.2d 802, 810

(1950). At the conclusion of the evidence, the district court denied Time's motion for judgment as

a matter of law, finding that Time had not established that its republication of Schafer's photograph

from an affidavit filed in the Pan Am 103 case was "fair and honest" as a matter of law.6 Despite

the court's ruling that Time was not entitled to the privilege as a matter of law, Time presented

evidence that the photograph came from a sworn affidavit, filed in the Pan Am case, as well as its

reporter's efforts to confirm the identity of the man in the picture. During closing argument, Time

emphasized this evidence in an effort to argue that Time had exercised reasonable care before

publishing the picture. Schafer argues that this tactic effectively nullified the trial court's decision

on privilege and that the jury should have been instructed that the source of the photograph was

legally irrelevant to the question of Time's negligence.

       An inquiry into negligence requires the jury to determine whether the defendant acted

reasonably under the circumstances. The source of a particular piece of information is relevant to

the facts and circumstances that confront a defendant that republishes information in the regular

course of its business. Similarly, the steps that such a defendant took to verify the identity of the


   6
    Schafer makes a curious argument that Time's attempt to rely on the privilege defense, which
is one of "confession and avoidance" somehow amounts to an admission of libel. Although
resort to the privilege defense constitutes "admission of publication and bona fide,"it does not
constitute an admission of liability. See Auer v. Black, 163 Ga.App. 787, 789, 294 S.E.2d 616,
618-19 (1982).

                                                  11
man in the photograph are similarly relevant to the question of negligence. See Stange v. Cox Enter.,

211 Ga.App. 731, 733-34, 440 S.E.2d 503, 506-07 (1994) (discussing the steps a publisher took to

check the accuracy of a story and editorial). Ironically, Schafer's own prosecution of this cause of

action, in which he has argued that Time should never have published its story because it should

have known that the sources for much of the information in the story were thoroughly unreliable,

makes this point quite plainly.

       Moreover, Schafer's contention that the jury was unaware of the fact that a republication of

a libelous statement could itself constitute libel is unsupportable. As Time points out, the district

court instructed the jury that publication of the defamatory statement was an element of the charge.

The very fact that the court submitted this case to the jury and asked it to decide whether Time's

republication of the photograph made it liable to Schafer for libel demonstrates the jury could not

have been misled into accepting the source of the photograph as a complete defense. As a result,

we see no error in the district court's decision not to include Schafer's requested charge.

C. Refusal to Instruct on Georgia's Retraction Statute

        Finally, Schafer argues that the trial court erred by failing to include language instructing

the jury on Georgia's retraction statute. The statute in question, O.C.G.A. § 51-5-11, permits a libel

defendant to limit its potential liability by printing a retraction that conforms with several




                                                 12
enumerated requirements.7 The parties agree that Time's correction, printed over a month after

Schafer gave written demand for a retraction, did not comply with section 51-5-11(b)(1).

        Schafer argues that the court should have instructed the jury that the statute sets out the

minimum requirements for a legally sufficient retraction. This argument, however, contradicts the

plain language of Georgia's statute. Section 51-5-11 allows a libel defendant the option of limiting

its liability for compensatory and punitive damages by adhering to a number of specific conditions.

Time's failure to avail itself of the statute's protection did not make its efforts at correction "legally

insufficient" either in the sense that the jury could not consider a noncompliant correction as it

relates to the issues before it on the libel charge, or in the sense that such a correction gave rise to

some form of liability, see e.g., McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515


   7
    In pertinent part, the statute provides:

                (b) In any such action, the defendant may allege and give proof of the following
                matters as applicable:

                        (1) (A) That the matter alleged to have been published and to be libelous
                        was published without malice;

                         (B) That the defendant, in a regular issue of the newspaper or other
                        publication in question, within seven days after receiving written demand,
                        or in the next regular issue of the newspaper or other publication
                        following receipt of the demand if the next regular issue was not published
                        within seven days after receiving the demand, corrected and retracted the
                        allegedly libelous statement in as conspicuous and public a manner as that
                        in which the alleged libelous statement was published....

                        ....

                (c) Upon proof of the facts specified in paragraph (1) ... the plaintiff shall not be
                entitled to any punitive damages and the defendant shall be liable only to pay
                actual damages....

        O.C.G.A. § 51-5-11.

                                                   13
(D.C.Cir.1996) (finding no authority for a "duty to retract"). Schafer cites no case that lends

credibility to this reading of the statute, and our own research has uncovered no authority that

supports his position.

        As a result, section 51-5-11 had no bearing on the issues before the jury,8 and the court

correctly declined to include an instruction on the statute. Cf. Davis, 225 Ga.App. at 501, 484

S.E.2d at 248 (noting the error of including a charge that injects into a case issues not relevant to the

issues made by the pleadings and evidence). Instead, the district court correctly instructed the jury

that it could consider the timing, content, and prominence of Time's correction in its deliberations

regarding whether Time had acted to limit Schafer's damages. Moreover, the district court's

instruction that Time's failure to publish a correction that satisfied Schafer was not, by itself, a basis

for awarding damages was also a proper and accurate statement of the law.

II Evidentiary Issues

        Schafer also argues that the district court committed reversible error by permitting Time's

counsel to question Schafer regarding a number of "specific acts of misconduct" during

cross-examination and by excluding from evidence a memorandum discussing the credibility of



   8
    Schafer correctly points out that a number of courts have discussed a refusal to retract or a
defendant's publication of a retraction in bad faith as evidence of actual malice. See Augusta
Chronicle Publ'g Co. v. Arrington, 42 Ga.App. 746, 157 S.E. 394 (1931); Southern Bell Tel. &
Tel. v. Coastal Transmission Serv., Inc., 167 Ga.App. 611, 307 S.E.2d 83 (1983). In none of
those cases, however, did the defendant's failure to publish a retraction within the letter of a
statute such as section 51-5-11 constitute evidence of such bad faith. See e.g., Brown v. Fawcett
Pub., Inc., 196 So.2d 465, 473 (Fla.Ct.App.1967) (defendant's retraction of stories accusing the
plaintiff of sodomy and murder, which did not appear for more than a year after the grand jury
found insufficient evidence to support the charges, was evidence of actual malice). As a result, it
would have been error for the court to instruct the jury that a retraction that failed to comply with
the statute necessarily constituted evidence of actual malice. See Bandido's Inc., v. Journal
Gazette Co., 575 N.E.2d 324, 328 (Ind.Ct.App.1991).

                                                   14
Time's sources for the Pan Am 103 article. We review the district court's legal decision to apply a

particular rule of evidence de novo but its decision to admit or exclude particular evidence under that

rule for an abuse of discretion. Cf. Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435 (11th

Cir.1997). We will not overturn an evidentiary ruling unless the complaining party has shown a

"substantial prejudicial effect." See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997).

A. Specific Acts of Misconduct

        Evidence of a person's character is viewed with some suspicion under the law and generally

is disfavored in the Federal Rules of Evidence. See Fed.R.Evid. 404 (character evidence generally

inadmissible to prove conforming conduct). In an action for defamation or libel, however, the issue

of the plaintiff's reputation and character scarcely can be avoided because the plaintiff typically

seeks to recover compensation for damage to his or her reputation. Even in such cases, however,

the rules of evidence prescribe particular methods for broaching the issue of character. See

Fed.R.Evid. 405 ("Methods of Proving Character").

       Before trial, the district court instructed the parties that Time would not be permitted to

introduce and explore a number of specific acts and events in Schafer's life as they were irrelevant

to the issues before the jury. At that time, however, the district court warned both parties that the

court would revisit the character issue to the extent that particular acts and events were shown to be

relevant to the question of damages or how Schafer's picture might have become associated with the

Pan Am case. During the course of the trial, the district court made a preliminary ruling permitting

Time to explore selective incidents and acts in Schafer's background but excluding evidence of

others. Specifically, the district court ruled that Time would be permitted to question Schafer about

a felony conviction, a possible violation of his subsequent parole, convictions for driving under the


                                                  15
influence, an arrest for writing a bad check, failure to file tax returns, failure to pay alimony and

child support, and evidence concerning Schafer's efforts to change his name and social security

number.9 Schafer attacks the district court's ruling and argues that these specific acts were

inadmissible.

          The Federal Rules of Evidence detail the circumstances under which character evidence is

admissible and the methods available for presenting such evidence. In all cases in which character

evidence is admissible a party may offer reputation or opinion testimony on the issue of a person's

character. See Fed. R. Evid. 405(a).10 Only in cases in which a person's character is "an essential

element of a charge, claim or defense," however, may a party offer evidence of specific instances

of conduct. See Fed.R.Evid. 405(b).11

   9
   Schafer changed his name from Michael Franks at the age of 32 when he discovered that he
had never legally been adopted. See R21 at 4-5. The issue was relevant at trial because
"Michael Franks" was one of Lovejoy's purported aliases.
   10
        Rule 405 provides the following methods for introducing character evidence:

                  (a) Reputation or opinion. In all cases in which evidence of character or a trait of
                  character of a person is admissible, proof may be made by testimony as to
                  reputation or by testimony in the form of an opinion. On cross-examination,
                  inquiry is allowable into relevant specific instances of conduct.

                  (b) Specific instances of conduct. In cases in which character or a trait of
                  character of a person is an essential element of a charge, claim, or defense, proof
                  may also be made of specific instances of that person's conduct.

          Fed.R.Evid. 405.
   11
     The advisory committee notes to Rule 405 provide some insight as to the rule's limitations
on the use of specific acts to prove character:

                         Of the three methods of proving character provided by the rule, evidence
                  of specific instances of conduct is the most convincing. At the same time it
                  possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to
                  consume time. Consequently the rule confines the use of evidence of this kind to

                                                   16
        Character evidence does not constitute an "essential element" of a claim or charge unless

it alters the rights and liabilities of the parties under the substantive law. See United States v. Keiser,

57 F.3d 847, 856 & n. 20 (9th Cir.1995); Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir.1986)

(citing McCormick on Evidence § 187 at 551 (3d ed.1984)). Our determination of whether character

constitutes an essential element requires us to examine the "authoritative statutory or common law

statement of the elements of the prima facie case and defenses." Keiser, 57 F.3d at 856 n. 20.12 The

advisory committee's notes to the Federal Rules of Evidence provide two examples in which

character evidence constitutes such an essential element: "[1] the chastity of a victim under a statute

specifying her chastity as an element of the crime of seduction, or [2] the competency of the driver

in an action for negligently entrusting a motor vehicle to an incompetent driver." Fed.R.Evid. 404(a)

adv. comm. note (explaining that Rule 404 does not exclude such evidence because it is not offered

to prove conduct consistent with character). In addition to these examples, a charge of defamation

or libel commonly makes damage to the victim's reputation or character an essential element of the

case. See e.g., Johnson v. Pistilli, No. 95 C 6424 (N.D.Ill. Oct. 8, 1996) ("It is rare that character

is an essential element. The typical example of such a case is defamation where injury to reputation

must be proven."); see also Michael H. Graham, Handbook of Federal Evidence § 405.2 (4th

ed.1996). Georgia law confirms that an assertion of damage to reputation in a libel case makes the




                cases in which character is, in the strict sense, in issue and hence deserving of a
                searching inquiry.

        Fed.R.Evid. 405, adv. comm. note.
   12
     As the Keiser court noted, this inquiry is a legal rather than factual one, see Keiser, 57 F.3d
at 856 n. 20, and as a result, our review of the district court's decision on this matter is de novo.
Id. at 852 n. 6.

                                                    17
plaintiff's character an issue under the substantive law. See Ajouelo v. Auto-Soler Co., 61 Ga.App.

216, 6 S.E.2d 415, 419 (1939) ("It is generally held that the foundation of an action for defamation

is the injury done to the reputation, that is, injury to character in the opinion of others arising from

publication...."); Redfearn v. Thompson, 10 Ga.App. 550, 555, 73 S.E. 949 (1912) (permitting the

jury to consider plaintiff's bad reputation in mitigation of damages). Since the plaintiff's character

is substantively at issue in a libel case under Georgia law, Rule 405(b) permits the admission of

evidence regarding specific instances of the plaintiff's conduct on that issue.13 See Perrin, 784 F.2d

at 1045; Government of the Virgin Islands v. Grant, 775 F.2d 508, 511 n. 4 (3d Cir.1985); cf.

Longmire v. Alabama State Univ., 151 F.R.D. 414, 419 (M.D.Al.1992) (permitting discovery

regarding specific incidents because the libel plaintiff put his character in issue); accord Ex Parte

Healthsouth Corp., Nos. 1961758, 1970010, 2-3 (Ala.1997) (permitting discovery of such evidence

in a libel case under a state rule of evidence identical to Fed.R.Evid. 405(b)); Daniels v. Wal-Mart

Stores, Inc., 634 So.2d 88, 93 (Miss.1993) (making a similar observation in dicta). Given the plain



   13
     Schafer's argument that this analysis puts "the horse before the cart" because Rule 404
governs the question of whether character evidence is admissible is unavailing. Rule 404 forbids
the use of character evidence to prove "action in conformity therewith on a particular occasion,"
or as the advisory committee's notes describe it, the "circumstantial" use of character evidence.
See Fed.R.Evid. 404(a) adv. comm. notes. Rule 404 does not bar the admission of character
evidence when character or a particular character trait is actually at issue. Id. Rule 404 permits
the character evidence in dispute here, and Rule 405 governs the acceptable methods for
introducing it.

                For the sake of completing the analysis, however, we note that even though
        evidence of specific acts is admissible to prove character in a libel case under Rule
        405(b), a district court must still determine whether such acts pass muster under Federal
        Rule of Evidence 401 (relevance) and Federal Rule of Evidence 403 (prejudice). See
        United States v. Barry, 814 F.2d 1400, 1403-04 & n. 6 (9th Cir.1987). The district
        court's decision to admit the evidence at issue here cannot be said to constitute an abuse
        of discretion under these rules.

                                                  18
language of Rule 405(b), Schafer's arguments that specific acts remain inadmissible to prove

character in an action for libel are unpersuasive.14

        Accordingly, we find no error in Time's exploration of these and other issues of character

during its cross-examination of Schafer. To the extent that Time strayed from the specific issues of

character enumerated in the district court's preliminary ruling, including Time's questions regarding

Schafer's work for Soldier of Fortune magazine,15 Time's questions fell within the scope of Federal

Rules of Evidence 405(a) and 608(b).16 We cannot say that the district court's decisions on these

matters rose to the level of an abuse of discretion, nor can we say that Schafer suffered a "substantial

prejudicial effect." See Rodman, 105 F.3d at 1341.

B. Exclusion of the Pondisco Memorandum




   14
     Schafer cites Butts v. Curtis Publ'g Co., 225 F.Supp. 916 (N.D.Ga.1964) aff'd, 351 F.2d 702
(5th Cir.1965), 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a case decided before the
Federal Rules of Evidence entered into effect on July 1, 1973, for the proposition that specific
incidents of prior conduct are not admissible to prove character in a libel case. Although the
district court in that case confirmed that character was an essential issue in a libel case under
Georgia law and that a defendant could demonstrate that the "plaintiff's general character is bad,"
it held that both federal and state case law prevented the defendant from relying on specific acts
or general rumors to do so. Id. at 921. The plain language of Rule 405(b), however, contradicts
Butts by expressly permitting the admission of specific acts when character is an essential
element of the case. Schafer's citation to Sharon v. Time, Inc., 103 F.R.D. 86 (S.D.N.Y.1984), a
case that does not refer to Rule 405(b), does not require a different result.
   15
     It strikes us that the district court could have permitted Time to challenge Schafer's direct
testimony about his travels and work history without reference to the name of this particular
publication, the variable to which Schafer apparently attaches prejudice. Given the parties'
failure to suggest such an option, however, we cannot find that the district court abused its
discretion in this matter.
   16
     Rule 405(a) permits cross examination regarding specific instances of conduct when
character evidence is admissible. Rule 608(b) permits cross-examination regarding specific
instances of conduct to attack the credibility of a witness.

                                                  19
           Next, Schafer attacks the district court's decision to exclude from evidence a July 22, 1992

memorandum prepared by Robert Pondisco, Time's Public Affairs Director. The memorandum

discusses some of the repercussions of Time's publication of the Pan Am 103 story and addresses

a number of charges that the sources for the article obviously were unreliable. Significantly, the

memorandum does not mention the photograph at issue in this case but confines its observations to

the general outlines of Time's story. Schafer argues that the district court should have admitted the

memorandum into evidence. Alternatively, he argues that the district court erred by refusing to

allow Schafer's expert witness to discuss the memorandum to reveal the factual basis of his

testimony.17

            The district court noted that the memorandum contained hearsay and excluded the

memorandum after finding that prejudice substantially outweighed the document's marginal

relevance. Federal Rule of Evidence 401 sets out the standard for determining whether evidence is

relevant to an issue before the court;18 Federal Rule of Evidence 403 governs the decision to exclude


   17
     We decline to address Schafer's contention that the district court should have permitted
Schafer to use the memorandum to cross-examine Time's witnesses and impeach their
credibility. Schafer has not pointed us to anything in the record that suggests that Schafer
requested an opportunity to use the Pondisco memorandum for this purpose or that the district
court denied any such request. See R25 at 1266-67 (Time's expert witness claimed no reliance
on the memorandum when cross-examined by Schafer pursuant to Fed.R.Evid. 705); R23 at
961-1001 (direct and cross-examination of John Stacks, reflecting no mention of the Pondisco
memorandum). Ordinarily, we will not consider objections made for the first time on appeal.
See United States v. Prichett, 898 F.2d 130, 131 (11th Cir.1990) (per curiam).
   18
        The rule provides:

                         "Relevant evidence" means evidence having any tendency to make the
                  existence of any fact that is of consequence to the determination of the action
                  more probable or less probable than it would be without the evidence.

          Fed.R.Evid. 401.

                                                   20
relevant evidence when "its probative value is substantially outweighed by the danger of unfair

prejudice"19. We review the district court's exclusion of this evidence under Rule 403 for a clear

abuse of discretion.20 See United States v. Gilliard, 133 F.3d 809 (11th Cir.1998).

          Schafer correctly points out that the memorandum establishes that the article was

controversial at Time before it was published, that the sources for the story may not have been

credible, and that Time's publication of the report may have violated internal policies and

procedures. The memorandum, however, does not mention Time's decision to publish the particular

photograph at issue or its efforts to verify the identity of the man pictured in that photograph. As

a result, the memorandum was of marginal relevance to Schafer's claims. Evidence that tends to

show the general thrust of the article was false and lacked credibility has virtually no direct impact

on Schafer's theory of the case. Schafer's claim for libel arose out of Time's publication of his

photograph in connection with an alleged plot to destroy Pan Am 103 and kill hundreds of innocent

travelers. Even if Time's theory of the attack had been correct in every other detail, Schafer's claim

for libel would remain intact because the article incorrectly identified him as David Lovejoy—an




   19
        Rule 403 provides:

                         Although relevant, evidence may be excluded if its probative value is
                 substantially outweighed by the danger of unfair prejudice, confusion of the
                 issues, or misleading the jury, or by considerations of undue delay, waste of time,
                 or needless presentation of cumulative evidence.

          Fed.R.Evid. 403.
   20
     Since we find that the district court did not clearly abuse its discretion by excluding the
memorandum under Rule 403, we need not address the parties' arguments regarding the several
levels of hearsay present in the document.

                                                  21
alleged participant in that conspiracy.21 The only tangential relevance the memorandum had to the

issues before the court on Schafer's claims, therefore, depended on an inference that the problems

described in the memorandum extended to Time's measures to verify the identity of the man in the

offending picture. Although we cannot dismiss the memorandum as completely irrelevant, neither

can we fault the district court for giving it little weight.

        Moreover, the potential for prejudice from such a memorandum is plain. Schafer sought to

use the memorandum to show that Time's publication of the entire article constituted a lapse in

judgment and professional standards in the hope that the jury would attribute the same lack of care

to Time's decision to publish his photograph. The district court correctly concluded that such a

tactic could mislead the jury and confuse the issues before them. Accordingly, we discern no abuse

of discretion in the district court's decision to exclude the Pondisco memorandum under Rule 403.

         Schafer also argues that even if the district court correctly excluded the Pondisco

memorandum on the foregoing grounds, the memorandum should have been admitted to provide the

factual basis for the testimony of Schafer's expert witness. Edward Diamond testified on Schafer's

behalf regarding Time's decision to publish the Pan Am 103 article. In particular, Diamond

discussed a number of problems and issues that should have led Time to delay its publication of the

story or forego its publication altogether. Diamond also discussed some reasons why Time should

not have published Schafer's photograph in connection with the story. Schafer contends that the

Pondisco memorandum provided at least some of the factual basis for Diamond's testimony and




   21
     In fact, the damage to Schafer, incorrectly identified as David Lovejoy because of the
photograph, would no doubt have been much more severe if the rest of the article had turned out
to be accurate.

                                                   22
correctly notes that, in some circumstances, Federal Rule of Evidence 703 permits an expert to rely

on facts or data that would not be admissible at trial.22 As we have explained, however:

          Rule 703 ... is not an open door to all inadmissible evidence disguised as expert opinion.
          Although experts are sometimes allowed to refer to [inadmissible] ... evidence as a basis for
          their testimony, such [inadmissible evidence] ... must be the type of evidence reasonably
          relied upon by experts in the particular field in forming opinions or inferences on the subject.

United States v. Scrima, 819 F.2d 996, 1002 (11th Cir.1987). The Pondisco memorandum is hardly

the type of learned treatise or statistical data, the prototypical subjects of Rule 703 decisions, that

an expert might rely upon within the ordinary course of his or her profession. See Fed.R.Evid. 703

adv. comm. note. Nor has Schafer made any attempt to demonstrate how this isolated memorandum

could be of the type an expert typically relies on to bring it within Rule 703. As a result, the district

court did not err by preventing Diamond from referring to the memorandum to defend his testimony

upon cross examination.23




   22
        Rule 703 provides:

                 The facts or data in the particular case upon which an expert bases an opinion or
          inference may be those perceived by or made known to the expert at or before the
          hearing. If of a type reasonably relied upon by experts in the particular field in forming
          opinions or inferences upon the subject, the facts or data need not be admissible in
          evidence.

          Fed.R.Evid. 703.
   23
      Moreover, we are at a loss to identify how Schafer may have suffered any substantial
prejudice from the district court's ruling on this matter. Diamond's only attempt to rely on the
Pondisco memorandum during cross-examination came when Time's counsel questioned him
about his earlier assertion that a London newspaper had published an article making similar
allegations regarding the bombing of Pan Am 103 and had been forced to retract the story.
Diamond actually held up the offending memorandum as a source for this piece of information
before Time's counsel could object. See R20 at 729-30. As a result, Schafer's contention that
this isolated incident could have led the jury to believe that Diamond was drawing his opinions
from "thin air" is unpersuasive.

                                                    23
                                            CONCLUSION

        Schafer asks that we reverse the district court's evidentiary rulings and correct its instructions

to the jury. We find no error in the district court's decision to admit specific instances of conduct

to prove character under Federal Rule of Evidence 405(b) and its decision to exclude the Pondisco

memorandum under Federal Rule of Evidence Rule 403. We also discern no error in the district

court's refusal either to give Schafer's proposed instruction on republication of libel or to charge the

jury on Georgia's retraction statute. We hold, however, that the district court's re-charge to the jury

in the context of this case was in error and that this error raised a substantial likelihood that the jury

misapprehended the law as it deliberated on the merits of the case. We, therefore, reverse the jury's

verdict in Time's favor and remand for a new trial in accordance with this opinion.

        REVERSED and REMANDED.




                                                   24
