Thursday, July 17, 2014
Morton's Fork?: Supreme Court of Montana Finds Defendant Has to Testify to Support Self-Defense Claim, Despite Stand Your Ground
I've written a few posts about the doctrine of "communicated character," which allows a defendant to present evidence of the alleged victim's prior violent acts, not to prove the victim's violent tendencies, but instead to prove the defendant's reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim's violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let's take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014).
In Montana Ninth Judicial District Court, Vincent Lau was charged with deliberate homicide in connection with the shooting death of Donald Kline at the house of Susan Pfeifer. Lau claimed self-defense and gave a statement to the police in which he indicated that Pfeifer had previously told him about prior violent acts committed by Kline. Prior to trial, Lau indicated that he didn't plan to testify at trial but noted that he planned to claim self-defense and planned to proved his knowledge of Kline's violent past through his police statement. The trial court agreed with this protocol, causing the State to appeal.
On appeal, the Supreme Court of Montana first noted that Lau's police statement was classic hearsay: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In other words, Lau would be using the statement to prove that Pfeifer in fact told him about Kline's violent past. The Montana Supremes did note that Pfeifer herself could testify that she told Lau about Kline's violent past because her testimony would not be offered to prove the truth of the matter asserted -- that Kline had a violent past -- but instead to prove effect on the listner -- that the statement placed Lau in reasonable apprehension, regardless of whether it was true.
Ostensibly, however, Pfeifer is unwilling or unable to render this testimony, which led the court to consider Lau's other contentions. These contentions related to the passage of Montana's Stand Your Ground law in 2009. One of the provisions of that law -- § 45–3–112 -- provides that an investigation of an incident involving justifiable use of force "must be conducted so as to disclose all evidence." According to the court, though, the mentioned disclosure is disclosure to the defendant, not disclosure to the jury.
Lau also focused on § 46–16–131, which states that "when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified." The court, however, correctly noted that the burden of proof has nothing to do with the admissibility of evidence.
Finally, Lau claimed that requiring him to testify created a Morton's Fork between waiving his Fifth Amendment privilege against self-incrimination and forfeiting his right to present a complete defense. The court again turned this argument aside, concluding that Lau
point[ed] to no authority for the proposition that a defendant is entitled to circumvent well-established rules regarding the admissibility of hearsay and character evidence. Furthermore, "[a] defendant, in the course of defense, must necessarily make a number of hard decisions many of which bear on the exercise or waiver of constitutional rights. Often, as here, the choice is a difficult one. However, it does not follow that such choices cannot be constitutionally required."