Court of Appeals of Maryland Finds "First Aggressor" Character Evidence Exception Isn't Triggered by Opening Statements

Similar to Federal Rule of Evidence 404(a)(2)(C), Maryland Rule of Evidence 5-404(a)(2)(C) provides that

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.

So, if defense counsel claims in her opening statement that the victim was the first aggressor, can the prosecution present evidence of the victim's character for peacefulness in its case-in-chief? According to the opinion of the Court of Appeals of Maryland in Ford v. State, 197 A.3d 1090 (Md. 2018), the answer is "no."

When confronted with this issues in Ford, the court ruled as follows:

As to the first issue, we hold that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim's trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence, and Maryland Rule 5-404(a)(2)(C) specifically requires that “evidence that the victim was the first aggressor” be introduced before the prosecutor may rebut such evidence with “evidence of the alleged victim's trait of peacefulness[.]” (Emphasis added). Moreover, we hold that defense counsel's remarks during opening statement did not “open the door” for the prosecutor to present evidence of the alleged victim's trait of peacefulness. This is so because, even if defense counsel's remarks placed the victim's actions and character at issue and somehow indicated that the defendant would perhaps offer evidence to prove that the victim was the aggressor, Maryland Rule 5-404(a)(2)(C) definitively requires evidence that the victim was the first aggressor—not merely a statement indicating that some evidence might possibly be introduced—to trigger the State's ability to rebut with evidence of the victim's trait of peacefulness. Accordingly, the trial court erred in concluding that defense counsel had “opened the door” for the State to present evidence of the victim's trait of peacefulness under Maryland Rule 5-404(a)(2)(C), and in permitting the State, over objection, to elicit testimony in its case-in-chief from State's witnesses that the victim was a “quiet, nice person[, n]ice to everybody[,]” and “a cool person[, h]e was never, you know nasty or hostile, or anything.” Nevertheless, we hold that the error was harmless beyond a reasonable doubt.

-CM