EvidenceProf Blog

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

Friday, August 18, 2023

Louisiana Only Allows Evidence of the Victim's Bad Character for Violence if There's Evidence (S)he Committed an Overt Act at the Time of the Crime Charged

Federal Rule of Evidence 404(a)(2)(B) provides that 

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait

By way of contrast, Louisiana Article of Evidence 404(A)(2)(a) contains additional restrictions. It states that

Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence;  provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible;  provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence;  and further provided that an expert's opinion as to the effects of the prior assaultive acts on the accused's state of mind is admissible (emphasis added).

I became aware of the bolded limitation through the recent opinion in State v. Battley, 2023 WL 4361074 (La.App.1st 2023). In finding that the trial court properly precluded the defendant from presenting evidence of the victim's violent character, the Court of Appeal of Louisiana noted that

Such evidence is admissible when the accused offers evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged. La. Code Evid. art. 404(A)(2). Thus, in order to introduce any evidence regarding the victim's character, it had to first be shown that the victim made some hostile demonstration or overt act at the time of the offense charged.

Because the defendant couldn't present evidence of this, he was properly precluded from attacking the victim's character.



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This has been the law in Louisiana for quite some time. See, e.g., State v. Lee, 331 So.2d 455, 458-459 (La. 1975).

Posted by: MBC | Aug 18, 2023 12:10:50 PM

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