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Univ. of South Carolina School of Law

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Thursday, May 30, 2013

Know Thy Enemy: How the Jodi Arias Trial Differed From the George Zimmerman Trial With Regard to Character Evidence

In yesterday's post, I argued that George ZImmerman should not be able to present evidence of specific instances of violent conduct by Trayvon Martin to support his claim of self-defense. In response, Rick Underwood left the following two comments:

1. Great. But that's not what happened in the Jodi Arias case. It all depends on who the defendant is!

Any comment?

2. The point of my previous post was that the Jodi Arias defense was self-defense. Then it morphed into "the guy was nasty" and "abusive." The defendant said whatever she wanted to (apparently nobody believed it). There seemed to be no rules of evidence involved. The expert testimony was pathetic.

Of course, the bottom line is that when death is on the table, the rules get thrown out. Maybe ok and maybe not.

I do agree with your analysis. It is spot on. My point is the the rules don't seem to matter in some cases with some defendants.

So, let's take a look at the Jodi Arias case and the Arizona Rules of Evidence.

Jodi Arias was charged  with the murder of Travis Alexander. At trial, she claimed self-defense and was allowed to testify concerning alleged acts of domestic violence committed against her by Alexander. Why? Arizona Rule of Evidence 404(a) generally precludes the admission of propensity character evidence. That said, Arizona Rule of Evidence 404(a)(2) gives a criminal defendant the option of presenting evidence concerning the bad character of the alleged victim for a pertinent character trait, with the consequence being that the presentation of such evidence opens the door for the prosecution to present evidence concerning (1) the alleged victim's good character for that same trait; and/or (2) the defendant's bad character for that same trait.

Even when evidence is admissible under Rule 404(a)(2), however, the method of proof is governed by Arizona Rule of Evidence 405:

Rule 405. Methods of Proving Character  

(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.

Courts generally hold that the alleged victim's character for violence is not an essential element of a defendant's claim of self defense, see, e.g., State v. Fish, 213 P.3d 258 (Ariz.App. Div. 1 2009), which is why I argued yesterday that George Zimmerman could not present evidence of specific instances of violence by Trayvon Martin. So, shouldn't the same have held true for Jodi Arias?

The answer to this question is "no" because there is one fundamental difference between the two cases: Arias knew her victim (and his alleged violent history) while George ZImmerman did not. Therefore, Arias could legitimately argue that she was presenting evidence of specific instances of violence by Alexander, not to prove his violent propensities, but to prove why she was in reasonable apprehension of him. As I noted yesterday, this is known as the "communicated character" theory of character evidence, and it is a theory that Arizona courts recognize.

As the Court of Appeals of Arizona noted in State v. Connor, 161 P.3d 596, 602 (Ariz.App. Div. 2007), "[t]he defendant may offer into evidence specific instances of violence committed by the victim...'if the defendant knew of them...or if they are directed toward third persons relating to or growing out of the same transaction, or so proximate in time and place and circumstances as would legitimately reflect upon the conduct or motives of the parties at the time of the affray.'"

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/05/inyesterdays-post-i-argued-that-george-zimmerman-should-not-be-able-to-present-evidence-of-specific-instances-of-violent-con.html

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Comments

in the above post it is noted
"That said, Arizona Rule of Evidence 404(a)(2) gives a criminal defendant the option of presenting evidence concerning the bad character of the alleged victim for a pertinent character trait, with the consequence being that the presentation of such evidence opens the door for the prosecution to present evidence concerning (1) the alleged victim's good character for that same trait; and/or (2) the defendant's bad character for that same trait."

Don't believe (2) is accurate unless something has recently changed for which I am unaware. In Arizona, prosecution can only rebut with evidence of victim's good character for some trait - not (2) or rebut with D's bad character for same trait. Arizona differs from and did not adopt the federal rules in this regard.

Posted by: chris | May 30, 2013 11:24:33 AM


Great.

Thanks.

Of course we still have the question as to whether the evidence had to do with violence and self-defense.

Posted by: Rick Underwood | May 30, 2013 12:09:04 PM


Again, I am probably not making myself clear. The real question I have is whether the evidence that the Arizona judge let in had to do with violence (a pertinent trait of character of the victim) - or just stuff that trashed the victim as a nasty person. There were claims of child porn etc.... There was no way for the dead victim or anyone else to respond, and this did not seem to be self defense stuff. It just seemed to me that there was no judicial control - and I figured that it was because it was a death case. The judge in Florida is running a much tighter ship, and I guess she can, because death is not on the table, and the defendant is not a young female.

Posted by: Rick Underwood | May 30, 2013 12:44:12 PM

Chris, thanks for the response and catching my mistake. You are correct. Unlike under the Federal Rules of Evidence, the Arizona Rules of Evidence don't permit the prosecution to respond to character evidence regarding the victim with character evidence regarding the defendant.

Posted by: Colin Miller | May 30, 2013 1:56:05 PM

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