EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, June 11, 2012

Be Aggressive: Why Does Rule 404(a)(2)(C) Only Apply In First Aggressor Cases & Not Other Self-Defense Cases?

I'm currently working on an article on Federal Rule of Evidence 404(a)(2)(C), which states that, despite the general ban on the admission of propensity character evidence, 

In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Now, whenever I have taught Rule 404(a)(2)(C), I have always said that it is triggered by a homicide defendant claiming self-defense. The actual language of the Rule, however, clearly requires a homicide defendant to claim that the victim was the first aggressor for the prosecution to be able to admit evidence of the alleged victim's trait of peacefulness. This point is driven home by the opinion of the Court of Criminal Appeals of Tennessee in State v. Copenny, 888 S.W.2d 450 (Tenn.Cr.App. 1993). But does this point make sense?

In Copenny, Amos Copenny shot and killed the victim, Bobby Wilson. At trial, Copenny claimed self-defense. Unfortunately, the opinion in Copenny doesn't give us too much in the way of specifics, but it does tell us that, at trial,

Aliscia Patillo stated that she and appellant were at Larry's Lounge about four weeks before the shooting when the victim came in and told appellant, "You and your bitch can go down." The victim then left and appellant followed him out the door. Ms. Patillo watched appellant walk towards his car and saw the victim run past him with a gun. Two other men surrounded the appellant with guns. Appellant tried to get into his car, but the victim began to fight with him. One of the other men hit appellant in the head with the butt of a pistol, and the gun discharged.

Moreover, the opinion makes clear that Copenny wanted to present evidence that Wilson was the first aggressor in the altercation that led to his death:

The appellant asserts that the court erred in prohibiting evidence showing that the victim was under the influence of cocaine at the time of the shooting. He contends this evidence is relevant in proving that the victim was the first aggressor in the fight because cocaine may cause a person to act violently. Appellant, however, presents no evidence that the victim had taken cocaine.

The trial court, however, precluded Copenny from presenting this evidence. Presumably, then, Copenny presented evidence such as Patillo's testimony to indicate that he reasonably feared Wilson and evidence that Wilson was acting aggressively in the altercation that led to his death but did not present evidence that Wilson was the first aggressor. And what this meant was that the trial court erred in allowing the prosecution to admit evidence of WIlsion's character for peacefulness:

Appellant's counsel alluded to the victim's being the first aggressor in his opening statement; however, he proffered no evidence of this before the state introduced testimony that the victim had never carried a gun until fired upon. As such, this evidence was improper and irrelevant under Rule 404(a)(2) at this point in the trial.

This opinion is consistent with other opinions on the issue, such as the opinion of the Court of Appeals of Ohio, Seventh District, in State v. Austin, 686 N.E.2d 324 (Ohio App. 7 Dist. 1996), which held that

When an accused injects the issue of the victim's character into the case, either by offering character evidence in accordance with Evid.R. 405 or by coupling self-defense with evidence of first aggression by the victim in a homicide case, the accused does not by virtue of these elections open the issue of the accused's own character (emphasis added).

The main question that I address in my article is: What rationale can support the existence of Rule 404(a)(2)(C)? As I will note in the article and in future posts, I have many issues with the Rule as a whole. Its narrow focus on homicide cases in which the defendant claims that the victim was the first aggressor, though, is particularly perplexing. Why did it matter in Copenny that Copenny apparently claimed that Wilson acted aggressively but was not the first aggressor?

Or, let's say that Copenny were the first aggressor and then communicated his withdrawal and attempted to withdraw but Wilson kept coming at him, leading Copenny to shoot and kill him? Copenny could claim self-defense but would not open the door to character evidence because he would not be claiming that Wilson were the first aggressor. Or let's say that Copenny pushed Wilson and then Wilson escalated the situation by attempting to use lethal force against Copenny, leading Copenny to shoot and kill him. Again, Copenny could claim self-defense but would not open the door to character evidence because he would not be claiming that Wilson were the first aggressor.

So, what rationale explains the application of Rule 404(a)(2)(C) in a first aggressor case and the non-application of the Rule in these other self-defense cases? I think the only possible rationale (and I don't even really think that it is a rationale) for the Rule is the exceptional need for the evidence in homicide cases. The analogue here is the dying declaration exception to the rule against hearsay, which the Advisory Committee justifies in part because of "the exceptional need for the evidence in homicide cases...."

But if evidentiary need is the justification for Rule 404(a)(2)(C), why wouldn't it apply in all homicide cases (as well as in civil cases, like the dying declarations exception)? I suppose the argument would be that a defendant claiming that the victim was the first aggressor sort of (but not really) attacks the character of the victim for violence, which justifies the prosecution presenting evidence of the victim's peacefulness? But doesn't the defendant in a withdrawal or escalation case do the same? In other words, isn't the defendant in a withdrawal case kind of claiming that a normal person would have stopped attacking him after he withdrew but that the victim didn't because he was violent? And, isn't the defendant in an escalation case claiming that the normal response to a shove is a shove and that the victim's attempt to use lethal force was because he was violent.

Of course, all of this is ridiculous because the defendant in any of these cases is merely claiming that the victim was overly violent/aggressive in the altercation leading to his death and not that he was generally violent, which is why Rule 404(a)(2)(C) makes little sense. But doesn't the rule make a little more sense in a case like Copenny.

Think about it. What's the classic case in which a defendant is claiming self-defense but is not claiming that the victim was the first aggressor? That case probably looks a lot like Copenny, with the defendant claiming that even though the victim wasn't the first aggressor in the altercation leading to his death, the defendant reasonably feared the victim because of prior acts of violence committed by the victim against the defendant. This still isn't propensity character evidence, but it looks a lot more like an attack on the character of the victim for violence. And yet, in such a case, Rule 404(a)(2)(C) doesn't apply.

In conclusion, for the above reasons and many more that I will explain later, I think that  Rule 404(a)(2)(C) should be abolished. But, if it is not, what possible justification can there be for limiting its application to "first aggressor" homicide cases but not other homicide cases in which the defendant claims self-defense?



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Either I don't understand the substance of your objections CM or you're simply being dense. How can you not understand that it is of paramount importance to the jury who started the sequence of events that lead to the killing. As I understand Federal Rule of Evidence 404(a)(2)(C) it will only arise in a situation were the defense has said, in effect, "well the victim started it". If the defense isn't making that argument then the rule simply doesn't apply.

This makes perfect sense. If the defendant isn't saying that the victim started it he must be relying on some other theory to justify self-defense. Whatever the other theory offered by the defense how is the "peacefulness" of the victim relevant. It's not. Your approach would allow the prosecution to babble on endlessly that the victim was as peaceful as a rabbit in a carrot shop when the defense never said he wasn't. Such irrelevancies can't help but be prejudicial to the defendant as the court correctly found in Copenny.

Posted by: Daniel | Jun 11, 2012 9:05:27 PM

Daniel, consider two of the other situations I mentioned: (1) the defendant is the first aggressor but then communicates his intent to withdraw and attempts to withdraw, with the victim refusing to similarly withdraw and instead attacking the defendant with lethal force, which leads the defendant to kill the victim; and (2) the defendant is the first aggressor with a push, but the victim then responds with lethal force, which leads the defendant to kill the victim.

Isn't the peacefulness of the victim relevant in both situations (1) & (2)? In (1), the defendant is claiming that a reasonable person would have withdrawn (or certainly wouldn't have responded with lethal force) after he tried to withdraw and that it was the victim's aggressiveness that sustained the situation. And, in (2), the defendant is claiming that a reasonable person would have responded with a push or maybe a punch but that the victim responded with lethal force because he was aggressive.

Posted by: Colin Miller | Jun 12, 2012 9:43:31 AM

"Isn't the peacefulness of the victim relevant in both situations (1) & (2)?"


You asked before what the basis for the rule is and I'd assert it's not logic but experience. Ultimately in these types of cases the role of the jury is to assign blame and one key to assigning blame is know who started it. Social psychologist would call this "framing" and politicians call it "spin". The simple fact that the prosecution has brought charges means they are framing the defendant as a killer. So the only hope of mounting a viable defense is to frame the defendant in a different light.

This is not a new idea. Robert Frost wrote more than 100 years ago:

'"Well, who begun it?"
That's what at the end of a war
We always say not who won it,
Or what it was foughten for."

Experience tells us that the average juror marks a big difference between who started a fight and who sustained one. Isn't this the same exact logic we apply to the Iraq wars. The second war one was just mopping up the first war and it was Saddam who started the first one. So he's to blame. Did Saddam's peacefulness after the first Iraq war make any difference to us to our decision to instigate a second war. No.

I understand that there are people who think the first Iraq war was just and the second one was not just like their are people such as you who would argue that peacefulness matters in all the situations. But a defense counsel knows better. His experience confirms Frost's dictum. Is that logical; maybe not. It's real, though. Your solution would make the law quite logical and also quite unfair to the defense as a practical matter.

Posted by: Daniel | Jun 12, 2012 5:14:03 PM

It is an interesting argument, but let's break it down. When a character witness testifies that he thinks that the victim was a peaceful person, what's the basis for that testimony? It could simply be that the character witness never saw the victim act violently. If that's the case, though, how valuable is the testimony? I've seen plenty of people never act violently, but I've never seen most of those people in a situation where you would expect anyone to act violently.

My general sense is that character evidence is more valuable when it is based upon the character witness seeing the victim not respond to violence with violence. For instance, consider State v. Prtine, 784 N.W.2d 303 (Minn. 2010), in which a character witness testified that a homicide victim, Brent Ward was a peaceful person. The basis for that testimony was (1) “that she once saw Ward get punched in the face while at a bar and refuse to fight back;” and (2) “that on another occasion, Ward was slapped in the face and Ward's only reaction was to turn to his friends and say, “‘[l]et's get out of here.’”

The character witness in Prtine could offer this testimony because the defendant claimed that Ward was the first aggressor. But wouldn't this testimony have been even more valuable if the defendant admitted that he were the first aggressor but claimed that (a) he attempted to withdraw but Ward came at him with lethal force; or (b) that he initially used non-lethal force, and Ward responded with lethal force?

Posted by: Colin Miller | Jun 13, 2012 5:04:18 AM

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