During the Zimmerman trial there was considerable consternation among much of the public that the trial judge, Debra Nelson, had excluded certain evidence about Trayvon Martin’s past, including his apparent drug use, illegal firearms dealing, passion for “street fighting”, among other pleasant character traits.

Now that the trial has ended in a not guilty verdict Judge Nelson’s evidentiary decisions will never face the scathing reversals they so richly deserve, and I won’t seek to revisit them here. Those decisions do, however, raise some more general evidentiary questions in the context of the law of self-defense. In particular, they raise the question of when, and why, you might be able to introduce into evidence information about the character of the person against whom you used defensive force.

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To illustrate how the law treats character evidence and its admissibility I am going to use the Federal Rules of Evidence (FRE). Each state has, of course, its own rules of evidence, but dealing with 50 different state evidentiary codes is beyond the scope of any blog post, and the Federal rules provide a reasonable stand-in for the state rules in most cases.

FRE Rule 404. Character Evidence; Crimes or Other Acts

Normally, character evidence is simply not admissible, unless it meets certain specific conditions. The reason for this is that usually character evidence is intended to be used to suggest that a person acted in a certain manner at the time in question because he had acted in a similar manner on a prior occasion(s).

FRE Rule 404 explicitly excludes character evidence for this purpose:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 404 does, however, create an exception to this prohibition for a defendant or a victim in a criminal trial.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) 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; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

To apply these rules in the context of the Zimmerman trial, Zimmerman would be permitted to offer evidence of, say, his peaceful nature, and if the court admitted that evidence the State prosecutors would have been free to offer contrary evidence.

In addition, Zimmerman would be permitted to offer evidence about a pertinent character trait of Trayvon Martin, and if permitted the State prosecutors would be able to both evidence showing that in fact Zimmerman had a violent nature (if such evidence existed, of course) as well as evidence that Trayvon Martin also had a peaceful nature. (The mention of Rule 412 is to the Federal version of the “rape shield” law that makes it impermissible to introduce a woman’s sexual history into a rape case.)

In addition, because the Zimmerman trial was a homicide case, the State prosecutors would have been permitted to offer evidence of the alleged victim’s trait of peacefulness to counter Zimmerman’s claim that it was Martin who was the aggressor. To someone knowledge about these rules of evidence, the fact that the State never sought to introduce evidence of Martin’s peaceful nature spoke volumes.

It is also interesting that Rule 404 provides an exception to the rule against character evidence in the case of witnesses:

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

A person testifying in court always places their character into question on the issue of credibility and to what extent the jury should weight their testimony. This is why it is normally so hazardous for a defendant to take the stand. Until they do, evidence of their character may be admitted only for very narrowly limited purposes, effectively keeping most of the defendant’s character evidence out of court. Once the defendant takes the stand, however, the door slams wide open on character evidence.

Rule 405. Methods of Proving Character

If the character evidence passes the requirements of Rule 404, we must still consider whether and how particular pieces of character evidence may be admitted at trial.

When considering a evidence about a person’s character, the courts really distinguish between two types of evidence: (1) general reputation evidence; and (2) evidence of specific prior bad acts. FRE Rule 405 defines the methods by which character may be proven by each of these types of evidence:

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Self-Defense Cases Always Involve Issues of Character

There are many crimes for which a person’s character is neither relevant to the crime charged nor an element of a charge or defense, and in such cases evidence of a person’s background would not normally be admissible.

The First Principle of the Law of Self-Defense: Innocence

Self-defense cases, however, almost always involve the characters of the persons involved because of the First fundamental principle of the law of self defense: Innocence (discussed at length in Chapter 2 of “The Law of Self Defense, 2nd Edition”). Whether either particular party was the aggressor or the innocent victim in the conflict will likely make or break a self-defense case, and a person’s character can guide the jury to deciding whether a person was more likely to have been the aggressor.

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For example, a person with a reputation in the community for violence, or who has specific prior bad acts (e.g., convictions for assaults) is fairly considered to be more likely to have been the aggressor than the person with a reputation in the community for peacefulness and an absence of specific prior bad acts.

The Fifth Principle of the Law of Self-Defense: Reasonableness

In addition, self-defense cases always involve the Fifth fundamental principle of the law of self defense: Reasonableness (discussed at length in Chapter 6 of “The Law of Self Defense, 2nd Edition”.) That is, before the use of force in self defense is deemed justified, the defender’s perception of the threat he is defending against must have been reasonable. Whether the other party’s conduct was of a nature likely to cause a reasonable person to fear imminent harm is a question for the jury, and one which they can better answer if there is evidence that that person’s character is one of violence.

Seems Straightforward Enough . . . So Let’s Make a Mess of Things

So, now we have a kind of 2 x 2 matrix. There are two types of character evidence–general reputation and specific prior bad acts–and there are two reasons for admitting such evidence in a self-defense case–to show who was more likely to have been the aggressor and to show the reasonableness of the defendant’s fear.

So far, pretty straightforward, right? But this is the law, and the law is only rarely left to be straightforward. Indeed, we now have to add a third layer or dimension to the analysis. That is, is it necessary that the defendant was aware of this character evidence at the time he acted in self-defense, or is it enough that the defendant learned of the character evidence only after the fact?

So, now we have a 2  x  2  x  2 matrix: reputation/prior acts; aggressor/reasonableness; knew at time/learned later. From this multi-layered matrix each of our 50 states gets to pick their own unique combination. And, yes, the result is a bit of a mess.

The States’ Many Varied Approaches to Handling Evidence of “Victim’s” Character

So, let’s consider all this in the context of the character evidence of the “victim” in a self-defense case, the person against whom defensive force was used, the equivalent of Trayvon Martin in the Zimmerman trial.

One common combination of choices from the matrix in the context of general reputation evidence is to allow in general reputation evidence of the victim to show either aggression of the victim or reasonableness of the defendant, and regardless of whether the defendant was aware of the character evidence at the time of the use of defensive force or not. Evidence of prior specific bad acts of the victim, however, would be admissible only if known to the defendant at the time of the confrontation.

This is, in fact, the evidentiary choice made by the Florida legislature. Under this framework, Martin’s specific bad acts, such as his alleged drug use, gun dealing, and street fighting, would be admissible only if known to Zimmerman at the time of their confrontation. Because Zimmerman had no such knowledge at the time, evidence of Martin’s specific prior bad acts was not permissible under Florida’s version of Rules 404 and 405.

Judge Nelson, Florida v. Zimmerman

Judge Nelson, Florida v. Zimmerman

Another common choice among the states is to allow the evidence of general reputation in if it is offered to show who was the aggressor, even if the defendant was not aware of that reputation at the time. On the other hand, evidence of specific prior bad acts is allowed in only if the prior acts were known to the defendant at the time he used defensive force.

Other states, such as Arkansas, require that the defendant have possessed knowledge of either the general reputation or specific prior bad acts, or the character evidence is excluded.

Still others, such as California, impose no such requirement that the defendant had possessed the knowledge at the time of the confrontation, at least in the context of self-defense cases.

Wondering How Your State Handles “Victim” Character Evidence? There’s a Book for That

If you’re interested in knowing how any particular state has made its selections from this 2x2x2 matrix of character evidence in self-defense cases, I refer you to Table 9-1. Admissibility of Attacker’s Reputation and History, in “The Law of Self Defense, 2nd Edition,” which covers all 50 states.


NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.  For more information, email seminar@lawofselfdefense.com.

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.