Self Defense And Character Evidence In Colorado Violent Crime Trials
By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney
Self Defense And Character Evidence In Colorado Violent Crime Trials – Raising self defense as an affirmative defense to a Colorado criminal charge of assault requires understanding all aspects of the defense. The effective use of character evidence pointing out the violent propensities of the alleged victim may be critical to prove that the use of self defense of the accused was justified.
This brief article addresses the use of Colorado Rule of Evidence 404 as part of a coordinated attack on the State’s case using Colorado’s law of self defense and evidence that the alleged victim was the initial aggressor and/or accused was aware of the alleged victim’s prior acts of violence.
Colorado juries decide cases based on fairness. They want to do the right thing. But they cannot do the right thing unless they have a better understanding of the people involved and the true nature of what happened.
Human nature is at issue here. To understand whether self defense was justified in a particular case means knowing who the first aggressor was and what the alleged victim did, if anything, to provoke the response from the accused and that includes the admission of character evidence as described more fully below.
The Interconnection Of Character Evidence Issues And The Colorado Self Defense Law
The Classic Bar Fight Scenario
John and Jordan are involved in a bar fight – fighting each other of course. Each accuses the other of being the first aggressor and each asserts a claim of self defense. The police and the District Attorney charged Jordan.
John has a well known local reputation in the community for violence and aggression especially for starting fights with total and complete strangers to the bar.
Jordan has no such reputation. He is visiting from out of state and has never been in this bar before.
This is a “what was done” case. If there are few or no eyewitnesses – (very common in bar fight cases) – the Defendant and the alleged victim essentially become locked in a swearing contest in which the jury is charged with the decision of deciding just who is telling the truth.
If you are Jordan – can you inform the jury of John’s history of aggression?
The law of self defense as it relates to character evidence comes down to two basic rules.
Rule 1: A Defendant is allowed to introduce evidence of an alleged victim’s violent character known to the defendant at the time of the incident to prove that the defendant suffered a reasonable fear of bodily injury at the hands of the victim.
Rule 2: A Defendant is allowed to introduce evidence of an alleged victim’s violent character whether or not known to the defendant at the time of the incident to suggest that the victim was the first aggressor.
The Key Governing Colorado Laws In The Area Of Self Defense And Character Evidence
What follows are the key Colorado Laws in this area:
Colorado’s Character Evidence Law – Bad Acts
Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. In a criminal case, evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim’s character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim. In a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness as provided in Rules 607, 608, and 13-90-101 .
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
(Federal Rule Is Identical.)
Colorado’s Self Defense Law
§ 18-1-704. Use of Physical Force in Defense of a Person
(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or
(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness other than conviction of crime as provided in § 13-90-101 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
Raising And Using The Alleged “Victims” Violent Character In Colorado Violent Crimes Cases
There are four primary methods to raise the affirmative defense of self-defense at trial, These 4 methods are:
1. The use of eyewitness testimony – (if it is available).
2. The use of forensic evidence -(such as CSI evidence)
3. Testimony by the parties – (a so called “swearing contest” between the defendant and the victim),
4. Character evidence – (the subject of this article).
Colorado is one of only a few States that allows the introduction of evidence that the alleged victim had a violent character and was the “first aggressor.”
As noted above, establishing exactly who is the initial or first aggressor is critically important to successfully establish a claim of self defense.
Recall Section 18-1-704 (3) (b):
…
(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
If the defense can factually establish at trial that the alleged victim was actually the initial or the first aggressor is one of the primary keys to a successful use of the accused’s right of self-defense.
How The Use Of A Character Trait For Violence Of The Alleged Victim Works Factors Into A Self Defense Case – Some Law
Summary – Character Evidence And Self Defense
There are three possible forms that character evidence may take in a case where self defense is asserted by the Defendant:
1. Specific acts evidence,
2. Reputation evidence, and
3. Opinion evidence
An example of the most damaging and most severely limited of these three types of evidence – specific act evidence – is self-explanatory One example would be that the Defendant was aware of prior threats by the alleged victim to his neighbors that he would kill them with a butcher knife. If the attack by the same person is violent and under out hypothetical the Defendant had knowledge of the alleged victim’s violent character at the time of the incident, that evidence is admissible.
This is known as “state of mind” evidence and is admissible to show the defendant’s state of mind at the time of the incident. The introduction of this evidence is to show that the accused was reasonably apprehensive for his safety used that the degree of force that was reasonable in light of the victim’s violent tendencies.
Self-defense is the “reasonable belief” that an attacker will inflict harm.
If the Accused:
1. Has witnessed the alleged victim attack others
2. Has knowledge of the alleged victim’s propensity to physically assault others, and
3. That knowledge is relevant to whether he “reasonably believed” the alleged victim may attack him.
…then the evidence is most likely to be admitted at trial.
The second purpose for which specific instances of violence is admissible as character evidence is to show that the victim was the first aggressor in the altercation. Here, the defendant’s state of mind is not necessarily relevant because the evidence is admitted to show the victim’s propensity on the issue of who was the “first aggressor.” (See above)
Evidence of the alleged victim’s propensity for violence clearly has substantial probative value, and helps a jury identify the first aggressor when that issue is in dispute.
Again, the general rule as regards to the admission of prior acts of violence as character evidence is – it is NOT admissible. I repeat – prior acts of violence on the part of the victim are not generally admissible to establish self-defense, UNLESS the defendant had knowledge of the prior acts of violence at the time of the incident or they are admitted that he was the initial aggressor, that trait may be shown by specific instances of past conduct.
The Role Of Rule Of Evidence 403
Whether a judge admits this kind of evidence will also turn on the following rule of evidence – which permits the exclusion of relevant evidence if it is too prejudicial to either side or confuses the issues, wastes times or is redundant.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Another Important Risk To Understand – Opening The Door To The Prosecution
While the defendant can successfully admit character evidence of the alleged victim – it may “open the door” for the prosecution to then “rebut” through the admission of evidence of the defendant’s trait – or tendency of aggression.
Self Defense And Character Evidence In Colorado Violent Crime Trials
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.
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