News: “When Is Evidence of Attacker’s Character/Bad Acts Relevant?”

Today’s post involves a decision in a preliminary hearing out of Tennessee.  This case involves the killing of a black suspect, Daniel Hambrick, by a white police officer, Officer Andrew Delke, and is being pursued aggressively by prosecutors who argue that Delke shooting the fleeing Hambrick in the back three times constitutes murder, despite the fact that it is undisputed that Hambrick was armed with a handgun.

This post doesn’t discuss the merits of this case (on which you can find more details here) but rather focuses on one particular issue:  When can the character or prior bad acts of the victim be relevant in a self-defense case.

I’m using the term “victim” in the technical sense here, to mean the victim of the defendant’s use of force—in cases of genuine self-defense, that “victim” was the unlawful aggressor against whom the use of force was lawful self-defense.

In this case the matter is at the preliminary hearing stage, with the hearing judge tasked with deciding whether there is probable cause to send the case to a grand jury for possible indictment of Officer Delke on the murder charge.  The defense would obviously like to see the matter dismissed entirely, but if not that then at least get the charge to be considered by the grand jury (and, thus, ultimately at trial if Delke is indicted) reduced from murder to some lesser charge.

Normally Character Evidence Inadmissible; Exceptions for Self-Defense

As part of that argument the defense wants admitted evidence of Hambrick’s bad character and/or prior bad acts.  Normally such evidence is not admissible—after all, Hambrick is not on trial, and in any case what’s at issue is not what might have happened on prior occasions but what happened during the interaction that resulted in Hambrick’s flight and Delke’s firing of shots.

An exception to this general rule against character evidence and prior bad acts evidence arises in cases of self-defense, however, where such evidence may be relevant and admissible.  In fact, there are two paths by which defense counsel can argue that the victim’s character and prior bad acts ought to be admissible, each with its own justified purpose and conditions.

As Evidence of Defendant’s State of Mind, if Known to Defendant

First, evidence of the victim’s bad character and prior bad acts may be relevant and admissible as evidence of the defendant’s state of mind and reasonable perception of a threat.  A key condition of this path of admitting such evidence, however, is that the defendant knew of this evidence at the time they acted in self-defense.

To illustrate, if a defender is aware that the person he is defending himself against has a violent character or has engaged in specific prior violent acts or has particularly threatened the defender with harm, that information bears directly on the defender’s state of mind at the time, and the reasonableness of their perception of a threat.  Given that this reasonableness is a required element of a claim of self-defense, once that legal defense has been raised such evidence becomes relevant to the case. 

But don’t forget the key requirement:  the defendant must have possessed the knowledge of character/prior bad acts at the time he acted in self-defense. If he only learned of the victim’s bad character/prior bad acts after the fact, that information could not have informed his decision making in self-defense at the time, and thus is not relevant to his reasonableness in acting in self-defense. 

As Evidence of First Aggressor, Even if Not Known to Defendant

Second, evidence of the victim’s bad character and prior bad acts may be relevant and admissible as evidence that it was the victim, rather than the defendant, who was the initial aggressor in the fight.  That is, it would seem more likely that a person with a violent character and a history of prior violent acts would be more likely to be the initial physical aggressor in a confrontation than would be a person lacking such violent character and history of prior violent acts. 

Given that the question of who was the initial aggressor touches directly on the “innocence” element of a self-defense claim, thus making this question relevant to the argument of that claim.

Interestingly, when such evidence is introduced for this purpose it is not require that the defendant possessed knowledge of the victim’s violent character and history of prior violent acts at the time he acted in purported self-defense.  Why not? Because here we’re not interested in the defendant’s state of mind, but rather in the victim’s state of mind.

There is a catch here, however:  Such evidence, if unknown at the time to the defendant, becomes relevant only if the question of who was an initial aggressor is actually at issue in the case.  If the prosecution were to concede, for example, that it was the victim who was the initial aggressor—in other words, that they are not attacking the defendant’s claim of self-defense on the element of innocence, but rather on some other element—then there is no argument about who was the initial aggressor, and the victim’s violent character and prior violent acts becomes irrelevant.  (Unless, of course, such was known to the defendant at the time, see above.)

This catch means that a prosecutor can avoid having such evidence introduced on this basis simply by conceding that it was the victim who was the initial aggressor, thus preventing the defense from raising this evidence before the jury.


Attorney Andrew F. Branca  
Law of Self Defense LLC



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