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VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.8 Character Of "Victim"

    253.4.8.1 Self Defense: Victim’s Prior Bad Acts, Threats Or Character Relevant To Both Subjective Belief And Objective Reasonableness
    253.4.8.2 Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character
    253.4.8.3 Self Defense: Jury Consideration Of Alleged Victim’s Prior Conviction Not Limited To Impeachment
    253.4.8.4 Self Defense: Character Of Alleged Victim -- Effect Of Intoxication On Propensity For Violence
    253.4.8.5 Self-Defense: Rebuttal Evidence As To Victim’s Peaceful Character

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VOLUME 11 - CHAPTER 253

RATIONALE: In some cases, the prior acts and/or character/reputation of the alleged victim may go to both prongs of relevance: to show that the alleged victim was the aggressor and to show the reasonableness of the defendant's belief in the need to defend. In such cases it may be appropriate to give a combined instruction on both prongs.

POINTS AND AUTHORITIES: See State v. Pletka (IA 1981) 310 NW2d 525, 528; State v. Rupp (IA 1979) 282 NW2d 125, 128; State v. Corn (NC 1982) 296 SE2d 261, 266 [when self-defense is raised as a defense, defendant may produce evidence of victim's character tending to show that victim was aggressor or that defendant was reasonably apprehensive of bodily harm, death or both]; Fry v. State (TX 1995) 915 SW2d 554, 560 [victim's general reputation for violence and specific acts of violent misconduct illustrating his dangerously aggressive character are admissible in murder prosecution to support claim of self-defense, either to show that victim was first aggressor or to show reasonableness of defendant's apprehension of danger]; State v. Ruane (TN 1995) 912 SW2d 766, 779-80 [specific violent acts of victim are admissible to corroborate defendant's assertion that victim was aggressor, but are not admissible to prove that victim acted in accordance with character trait].)

    See also FORECITE National™ 253.4.8 [Character Of "Victim"].

    See also FORECITE National™ 253.4.9 [Prior Acts Or Threats].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    Evidence has been received concerning _________ (name of alleged victim)’s [acts of violence] [threats] [bad treatment] against defendant [character for being (traits, e.g.: quarrelsome, vicious)] in an effort to show that __________ (name of alleged victim) was a dangerous and violent person.

    Consider this evidence on the questions of (1) whether __________ (name of alleged victim) was the aggressor at the time the defendant [allegedly] __________ (e.g., fired the shots) and (2) whether the defendant acted under circumstances which would have caused a reasonable person to be afraid of being injured or killed by __________ (name of alleged victim).

[See generally State v. Pletka (IA 1981) 310 NW2d 525, 528; cf. IOWA CRIMINAL JURY INSTRUCTIONS 400.13 [Victims Previous Bad Acts Or Character] ¶¶ 1 and 2 (Iowa State Bar Association, 1991).]

    Evidence was received of assaultive, aggressive or violent acts committed by __________ [victim] upon __________ [defendant]. This evidence may be considered by you for two purposes:

    (1) To prove that __________ [victim] had an assaultive, aggressive or violent character and that [he] [she] acted in conformity with such character on __________, 19_____;

    (2) As relevant to __________'s [defendant] honest and reasonable belief in the necessity to defend [himself] [herself] against death or great bodily injury at the hands of __________ [victim].

[Source: FORECITE National™.]

    Evidence of _____________'s (name of alleged victim) reputation is relevant as to two issues:

    1.    If the reputation was known to the defendant, it is evidence from which you may infer that the defendant reasonably believed [his] [her] life was in danger and as evidence that _____________ (name of alleged victim) was the aggressor.

    2.    Even if the reputation was not known to the defendant, it is evidence from which you may infer that _____________ (name of alleged victim) was the aggressor.

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 9.505 note [ Justification: Use Of Deadly Force In Self Defense, Sample Complete Instruction] (Pennsylvania Bar Institute, PBI Press, 08/85); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.17(A)(1) [Self Defense-Past Violence By Complainant Or Decedent] (Bar Association of the District of Columbia, 4th ed. 1993).]

A.    Specific Acts

    1.     Where Defendant Is Aware of Specific Acts

    Consider past acts of violence by _____________ (name of alleged victim) as to the reasonableness of the defendant’s fear for his/her safety.  Also, consider such evidence as to who was the aggressor.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.17(A)(1) [Self Defense-Past Violence By Complainant Or Decedent] (Bar Association of the District of Columbia, 4th ed. 1993).]

    2.     Where Defendant Is Unaware of Specific Acts

    Consider past acts of violence by _____________ (name of alleged victim) as to who was the aggressor.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.17(B)(1) [Self Defense-Past Violence By Complainant Or Decedent] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: When self defense is at issue, the defense may focus on the assaultive character of the alleged victim as proof that the victim was the aggressor. In such a case the defense should have the right to a defense theory instruction to assure that the jury will consider this point.

POINTS AND AUTHORITIES: When the issue is the accused's state of mind, the character of the deceased may be relevant but it must be accompanied with proof that the defendant was aware of such character or else it is irrelevant. (See e.g., U.S. v. James (9th Cir. 1999) 169 F3d 1210,1214; State v. Gantt (LA 1993) 616 So2d 1300, 1304 [defendant may introduce specific acts of victim known to defendant, which affected defendant's state of mind and which jury could consider in determining whether defendant acted in self-defense].)

    On the other hand, where the issue is the identity of the aggressor, the character of the deceased— even if unknown to the defendant — is relevant to show that the deceased was the aggressor. (See U.S. v. James, 169 F3d at 1214; U.S. v. Burks (DC Cir. 1972) 470 F2d 432, 437; People v. Thomas (CA 1969) 269 CA2d 327, 329 [74 CR 617]; State v. Lewchuk (NE 1995) 539 NW2d 847, 852-53; State v. Corn (NC 1982) 296 SE2d 261, 266 ["[W]hen self defense is raised as a defense, the defendant may produce evidence of the victim's character tending to show, (1) that the victim was the aggressor or (2) that defendant had a reasonable apprehension of death or bodily harm, or both"]; State v. Soto (RI 1984) 477 A2d 945, 949 [sole factual determination that jury was required to resolve was apparently whether victim was knifed in self-defense; defendant had right to elicit evidence regarding victim's alleged reputation for aggressive and violent behavior]; State v. Bellamy (SC 1987) 359 SE2d 63, 65 [uncommunicated threats admissible in self defense case]; State v. Griffin (SC 1981) 285 SE2d 631, 633 ["uncommunicated threats are admissible to show the mental attitude of the deceased and are relevant in the question of who was probably the aggressor"]; Tate v. State (TX 1998) 981 SW2d 189, 193; MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06, Part C--Special Matters [1] [Justification: Use of Force in Self-Defense] (Missouri Supreme Court Publications, 3rd ed. 1987); but see State v. Montoya (NM 1980) 622 P2d 1053, 1057; [evidence of aggressive nature may not be admissible when only "marginally relevant"].)

    As observed by one early court: "It is well and generally known that there are some violent and dangerous men in this country, who are in the habit of carrying pistols, belted behind them and in their pockets , who never think of fighting in any other way than with deadly weapons, who are expert in using them, and who, especially when intoxicated, bring on and press to the extreme of outrage their deadly encounters for causes and provocations that would be regarded as utterly trivial by peaceable men; and that if one of such persons, while engaged in an angry altercation, should suddenly step back and rapidly throw his hand behind him, it might readily be understood by those who saw it to mean that he was in the act of drawing a pistol to use it. The same act by one of the great mass of our peaceable citizens who are not in the habit of carrying weapons would suggest no such thought, and in such case the pistol would have to be drawn and exhibited before any such thing would be conceived, unless there had been some very extraordinary provocation." (Horbach v. State (TX 1875) 43 Tex. 242, 250].)

    See generally FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

CAVEAT: If the defense shows that the victim had a violent character, the prosecution may be allowed to rebut with good character of the victim and/or put on evidence of the violent character of the defendant. (See e.g., California Evidence Code § 1101b.)

INSTRUCTION PACKAGE AVAILABLE: For a package of instructions drafted by FORECITE National™ subscriber Christie Warren relating the victim's character and prior violent acts to self defense, click here. [Instruction Bank # I-858].

RESEARCH NOTES:

George P. Fletcher, Self defense As A Justification For Punishment, 12 Cardozo L.Rev. 859 (1991).

Character Of Victim To Show Propensity, Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 4:23, pp. 368-80.

Wharton’s Criminal Law (West, 15th Ed. 1993) § 127, p. 190.

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    Consider evidence of the character trait for violence of __________ (victim/alleged aggressor) in the form of the opinions of people who knew [him] [her] as to the issue of whether __________ (victim) was acting in conformity with [his] [her] character trait for violence on __________, 19____.

    This is so regardless of whether the defendant was aware of the [victim's/alleged aggressor's] character trait for violence.

    Evidence has been introduced [of the reputation of the defendant for being ________________ (insert trait or traits, such as "peaceful and law-abiding" or "violent and turbulent") [and] [of the reputation of _________________ (name of victim) for being _________________ (insert trait or traits)].  Consider this evidence, together with all the other evidence, in deciding whether the defendant reasonably believed [he] [she] was in imminent danger of harm from _____________________ (name of alleged victim).  Also, consider this evidence in deciding who was the initial aggressor.

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06 [Justification: Use Of Force In Self-Defense] Part C--Special Matters [1] and final paragraph.] (Missouri Supreme Court Publications, 3rd ed. 1987).]

    Consider evidence of specific violent acts recently committed by [_________] [the alleged victim], if the defendant knew of such acts, on the issue of whether the defendant had a reasonable belief in the need to defend [himself] [herself].  Also, consider this evidence in deciding who was the initial aggressor.

[See generally Commonwealth v. Edmonds (MA 1974) 313 NE2d 429, 431-32; Commonwealth v. Rubin (MA 1945) 63 NE2d 344, 345-46; cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 4.1 [Self Defense] ¶ 5 (Lexis, 2nd ed. 1999).]

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RATIONALE: Since the alleged victim's prior violent conviction is a prior violent act, it is relevant in a self defense case to who was the aggressor and, if known to the defendant, it is relevant to the reasonableness of the defendant's response.

POINTS AND AUTHORITIES: It is well settled that a defendant may rely on the victim’s prior conviction for a crime of violence to show the victim’s aggressive and violent character. (See e.g., People v. Lynch (IL 1984) 470 NE2d 1018, 1020; see also FORECITE National™ 25.13.6 [Character Or Reputation Of Victim As Relevant To Self Defense].) In such cases, "the jury should be instructed that evidence of a victim’s prior convictions for crimes of violence is not limited to impeachment purposes when also instructed to limit its consideration of evidence of prior convictions in other contexts."  [Original emphasis.]  (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.12X, note [Proof Of Prior Conviction/ Prior Violent Act/ Reputation- Victim- Self-Defense] (West, 4th ed. 2000).) Accordingly, an instruction such as the one set forth below may be appropriate to assure that the jury does not limit its consideration of the victim’s prior conviction to impeachment.

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

USE NOTE: The instruction could also be supplemented with specific language informing the jury that the victim’s prior conviction may be considered as to the question of who was the aggressor and/or the reasonableness of the defendant’s use of force against the victim (if the defendant was aware of the victim’s reputation for violence). (See FORECITE National™ 253.4.8.1 [Self Defense: Victim’s Previous Bad Acts Or Character Relevant To Both Subjective Belief And Objective Reasonableness].)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    The prosecution must prove beyond a reasonable doubt that the defendant was not justified in using the force which [he] [she] used.  Consider evidence of __________’s (name of alleged victim) prior conviction of the offense of __________ (conviction for violent crime) in deciding whether the prosecution has met this burden.

[Cf. ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.12X, note [Proof Of Prior Conviction/Prior Violent Act/Reputation- Victim-Self-Defense] (West, 4th ed. 2000).]

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 VOLUME 11 - CHAPTER 253

PRACTICE NOTE:  Evidence of the alleged victim's character or reputation for violence when intoxicated is admissible.  (Wharton’s Criminal Evidence (West, 15th Ed. 1986) § 4:23, pp. 377-78; see also Wharton’s Criminal Law (West, 15th Ed. 1993) §127, p. 190.)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    253.4.8.5    Self-Defense: Rebuttal Evidence As To Victim’s Peaceful Character

PRACTICE NOTE: Commonwealth v. Higgs (KY 2001) 59 SW3d 886 held that evidence of a homicide victim’s peaceful character is admissible to rebut evidence of the victim’s violent past offered by the defendant to show that he acted in reasonable fear of the victim.