Communicated character

If you have defended an assault case based on self-defense, you know that the alleged victim’s character for violence can be relevant. What about on direct?

If your client knows of prior acts of violence then he may have a better argument that it was necessary to use, perhaps, more force than if the client knew the victim to be a peaceful person.

Mil. R. Evid. 405(a) allows the opinion of a victim’s character trait for violence. 405(b) would appear to support specific acts regarding that trait of violence.

Prof. Colin Miller observes that Fed. R. Evid. 405(a) has been interpreted to allow evidence of prior bad acts by the victim, not to prove the victim’s bad character, but to prove the defendant’s reasonable apprehension of the victim. According to Miller, the feds call this “communicated character.” He discusses this in the context of In its recent opinion in Beck v. State, 2020 WL 7133063 (Ga. 2020), the Supreme Court of Georgia dealt with the question of whether the Peach State should adopt this communicated character exception. Georgia has a similar 405(a) rule of evidence.

In Strong v. State, 845 S.E.2d 653 (Ga. 2020) at n. 22, the court notes some of the prior cases addressing the issue.

See, e.g., White v. State , 307 Ga. 882, 885-86, 838 S.E.2d 828 (2020) ; Williams v. State, 301 Ga. 712, 715 n.3, 804 S.E.2d 31 (2017) ; Mohamud , 297 Ga. at 536 n.2, 773 S.E.2d 755. Federal courts have upheld the admission of such evidence. See, e.g., United States v. Bordeaux , 570 F.3d 1041, 1051 (8th Cir. 2009) (“[E]vidence of victim’s prior bad acts ‘is only admissible to the extent a defendant establishes knowledge of such prior violent conduct at the time of the conduct underlying the offense charged[.]’ ” (citations omitted)); United States v. Saenz , 179 F.3d 686, 689 (9th Cir. 1999) (holding that “a defendant claiming self defense may show his own state of mind by testifying that he knew of the victim’s prior acts of violence” and by presenting “extrinsic corroborating evidence of the victim’s [known] acts of violence”). Additionally, because these two threats were against Appellant, they may have been admissible to show Maurice and Appellant’s relationship. Cf. Flowers v. State, 307 Ga. 618, 621, 837 S.E.2d 824 (2020) (holding that evidence of a defendant’s prior acts toward a victim may be admissible where the nature of the relationship between the defendant and the victim sheds light on the defendant’s motive in committing the charged offense).

The Georgia court observed that a victim’s violent character is pertinent to, but not an essential element of self-defense, thus testimony is limited to opinion and reputation.

Beck also argues that the trial court erred by denying his request to admit specific instances of violent conduct by Liverpool, evidence about Liverpool’s reputation, and evidence that Liverpool had violence-themed tattoos.

“[a]lthough this Court has not yet decided whether, under the current Evidence Code, a victim’s specific acts of violence of which the defendant had personal knowledge may be admissible to show the defendant’s state of mind with respect to a claim of self-defense,” something that federal courts have allowed,…this case does not call on us to decide that issue.

The court determined there was sufficient other evidence of the alleged victim’s violent nature so any error was harmless.

Now, cross-examination may be a little different when a witness testifies about a victim’s character.

LII observes that,

According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony.