A “victim’s” prior record for violence

In a self-defense case it is proper, if available to introduce evidence that the alleged victim was the aggressor, etc. There are two general ways to do that. One of the most common issues to come up is specific instances of the alleged victim’s prior assaultive behavior. federalevidence blog has a nice reminder about this in connection with when/how the evidence would be admissible under (Mil.) R. Evid. 404 and 405.

Keep in mind that when you are dealing with specific instances, a threshold requirement is that the accused knew about the instances before the alleged assault. Otherwise the instances can’t have contributed to the accused’s state of mind at the time of the offense.

The circuit explained that admissibility of the evidence as specific incidents to prove the defendant’s state of mind was admitted under restricted circumstances under FRE 404(b), as “Drapeau would have been required to present evidence that he had pre-incident knowledge of the evidence.” Drapeau, __ F.3d at __ (citing United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (defendant’s state of mind ans well as the reasonableness of the defendant’s use of force was admissible under FRE 404(b)); United States v. Bordeaux, 570 F.3d 1041, 1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible under Rule 404(b) to establish the defendant’s state of mind and the reasonableness of the defendant’s use of force.”); United States v. Scout, 112 F.3d 955, 962 n.7 (8th Cir. 1997) ( “[The defendant] testified that he did not know the identity of the police officers pursuing him. Because [the officer’s] alleged reputation for violence could therefore not have affected [the defendant’s] state of mind when assaulting [the officer], [the officer’s] reputation—and how it was derived—was irrelevant.”))

Oh, and in light of my prior post:

the evidence was not admitted, except for an offer of proof outside the hearing of the jury, for purposes of the record.