§ 10.06 Victim's Character in Self-Defense Cases: FRE 404(a)(2)(B)

• Jurisdiction: United States

§ 10.06 Victim's Character in Self-Defense Cases: FRE 404(a)(2)(B)

At common law, a victim's character was considered relevant in two types of prosecutions: (1) on the issue of self-defense in homicide and assault cases, and (2) on the issue of consent in rape cases. In the latter, the rape-shield statute (Rule 412), rather than Rule 404, now controls. Rule 412 is discussed in the next section. Consequently, Rule 404(a)(2)(B) is applicable only when self-defense is raised in criminal cases.

The prosecution is prohibited from introducing evidence of the victim's character until the defense "opens the door." The fear is that the prosecutor will paint the victim in glowing terms. Whether the victim was a "good" or "bad" person is irrelevant.

First aggressor issue. In a homicide or assault case, the defendant may introduce evidence of the victim's violent character (pertinent trait) to show that the victim was the first aggressor,⁷⁰ thereby establishing one element of self-defense.⁷¹ Once evidence of the victim's character is introduced by the accused, the prosecution may introduce rebuttal evidence of the victim's character for peacefulness. Moreover, the prosecution may respond with evidence of the accused's violent character.⁷²

Both the defense and prosecution are limited by Rule 405(a), which permits reputation and opinion evidence, but not evidence of specific acts, to prove character.⁷³

[A] Special Rule in Homicide Cases

Rule 404(a)(2)(C) recognizes a special rule in homicide cases. Any evidence that the victim was the first aggressor in a homicide (but not an assault) case triggers the prosecution's right to introduce rebuttal evidence of the victim's peaceful character. For example, if the accused testifies that the victim was the first aggressor, but does not introduce character evidence on this issue, the prosecution may nevertheless introduce evidence of the victim's peaceful character in rebuttal. The disparate treatment in homicide vis-a-vis assault cases is based on the fact that the victim will not be available to contradict the defendant's version of events in a homicide prosecution.

[B] "Communicated" Character Distinguished

There is a second use of the victim's violent character that is also relevant to self-defense, i.e., to show the accused had a reasonable fear of bodily harm. The reasonable belief issue is a distinct element of self-defense; it differs from the first-aggressor issue.⁷⁴ Because this use does not involve...