Tuesday, July 7, 2009
The Character Of The Matter: Court Of Appeals Of Arizona Finds That Victim's Violent Character Is Not An Essential Element Of A Self Defense Claim
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...2. Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
(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, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.
So, how do these rules apply when a criminal defendant claims self-defense? Clearly, the defendant can introduce reputation/opinion evidence concerning the victim's character for violence, but is the victim's character for violence an essential element of the defendant's defense, meaning that he can also introduce specific instances of violence by the alleged victim? The answer, according to the recent opinion of the Court of Appeals of Arizona in State v. Fish, 2009 WL 1872146 (Ariz.App.Div. 1 2009), is "no" at least when the defendant did not know about those instances before the alleged crime.
In Fish, Harold Arthur Fish appealed from his conviction for second degree murder, claiming, inter alia, that the trial court erred by preventing him from presenting specific instance evidence concerning the victim's character for violence. The appellate court, however, agreed with the trial court, finding that while Fish could have presented opinion and/or reputation evidence concerning the victim's character for violence pursuant to Arizona Rule of Evidence 404(a)(2), he could not have presented specific instance testimony unless he had knowledge of those instances prior to the killing.
If Fish had this prior knowledge, he could present such evidence because he would be using it to prove that those instances of violence made him reasonably fear the victim, supporting his self-defense case, not (necessarily) to prove that the victim had a propensity to act violently and likely acted in conformity with that propensity at the time of the subject crime. But without that prior knowledge, Fish could only use that evidence for propensity/conformity purposes, rendering it inadmissible under Arizona Rule of Evidence 405(a).
Fish did claim that the victim's character for violence was an essential element of his self-defense claim, but the appellate court rejected this argument. The reason? As I have noted before on this blog, courts have generally found that character is an essential element in a very limited number of cases such as libel/slander/defamation cases and negligent hiring cases. And this makes sense. A typical defense to defamation is the truth, and if, say, a newspaper publishes a story that a politician is an adulterer, evidence of the politician's character for adultery would be essential to the truth defense; without it, the defense would automatically fail.
Meanwhile, if plaintiffs sue a company for negligently hiring a driver who drove drunk and killed family members, those plaintiffs would have to prove that the driver had a history of drunk driving. Without such character evidence, they could win. Thus, character in this case would be an essential element of the plaintiffs' claim.
Conversely, when a defendant claims self-defense in a murder trial, the victim's character for violence is not an essential element of that defense. The defendant can prove that the victim was the aggressor by providing his own testimony regarding the killing, the testimony of eywitnesses, forensic evidence, etc. Thus, the appellate court properly found that the trial court did not err with its ruling (but the appellate court did find that the trial court made other errors, which resulted in the defendant's conviction being reversed).