Lawfully armed citizens have much of their identity invested in being the good guy, and tend to assume that society and the courts will recognize their assailants as the bad guys. But it doesn’t always work out that way.

Case One: Massachusetts. A young college student is walking home after a pleasant evening having a few drinks with friends. He is attacked without provocation by a couple of “townies,” the most aggressive of whom is kicking him savagely as he struggles to rise from his hands and knees. Fearing that he’s about to be stomped to death, he draws his daily carry pocketknife, a Spyderco Military. He slashes blindly into the darkness behind him, trying to scare the attacker away. Instead, the blade finds its way into the attacker’s chest, mortally wounding him.

The dead assailant turns out to have a history of this exact kind of unprovoked attack. However, the jury is never allowed to know this, and the young man who defended himself is convicted of manslaughter.

Case Two: Arizona. A retired schoolteacher hiking in the desert is attacked by a couple of vicious dogs, and he draws his pistol and fires warning shots. The dogs are smart enough to back off and stop attacking. Their owner is not. Larger, younger and stronger than the teacher, the dog owner rushes at the teacher in an obvious state of rage, screaming threats. At the last moment—at powder-burning distance—the teacher fires. It takes three 10mm bullets to stop the attacker, who falls, mortally wounded.

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The investigation shows that the dead man had a long history of violent mental illness, including multiple vicious attacks like the one described by the hiker. But the hiker, who had never seen the man before, didn’t know that. The jury that judged the teacher is not allowed to know it either…and they convict him of second-degree murder.

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Case Three: Massachusetts. A young woman who works for an escort service winds up with a customer who becomes enraged when she won’t have sex with him. Threatened and then struck with a crowbar, she gets her hand on a knife and lashes back. Her attacker dies of the knife wounds.

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You guessed it: The dead man turns out to have attacked others in the past, in much the same way. And, you guessed it again, because she didn’t know it at the time she knifed him, the jurors aren’t allowed to know it either, and the jury convicts her of manslaughter.

Interwoven in the dangerous fantasy meme of “a good shoot is a good shoot” is the presumption that the jury will automatically recognize you as the good guy, and the criminal who forced you to shoot him in self-defense will be equally recognizable as a bad guy. I’ve heard people say things like, “When the jury finds out all the rotten things the bad guy did to build his criminal record, they’ll understand why I had to pull the trigger.”

Uh, no. That is not very likely at all in most jurisdictions.

In the majority of jurisdictions, prior bad acts by your opponent, if they were not known to you at the time you shot him in self-defense, will not be allowed to go in front of the jury.

Evidence Rule 404(b)

The prohibition of prior bad acts from the jury’s consideration tracks to Federal Rule 404(b). At the state level there will be some version of this rule, sometimes with the same number. Rule 404(b) instructs in part, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

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We have to understand the rationale of this rule. We are being judged for our act, which, in a self-defense shooting, is the use of deadly force on another human being. Essentially, the issue is whether we used sound, lawful judgment in performing that act. If we didn’t know about the attacker’s prior bad acts, they were not formative to the decision for which we are being judged. Therefore, since we did not have that knowledge when we took action, the jury will not be allowed to have it either. Fortunately, there are exceptions. Let’s look at them.

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Oh, wait—you’ve already seen the exceptions. That’s right, all three of the convictions mentioned above were reversed on appeal at the state Supreme Court level. They are now case law: Case One was Commonwealth of Massachusetts v. Alexander Pring-Wilson, Case Two was State of Arizona v. Harold Fish, and Case Three was Commonwealth of Massachusetts v. Rhonda Adjutant.

Obviously, case law emanating from a state Supreme Court is only binding in that particular state. However, these three precedents can be offered by your attorney as persuasive argument during motions in limine, which the judge may consider prior to trial to determine what evidence will and will not be allowed in your particular trial. It is also within judicial prerogative for the judge to set aside Rule 404b or its equivalent, but this normally requires the prosecution to “open the door.”

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In Case Four, in Florida, the prosecution had presented the deceased as an innocent 20-year-old with a clean criminal record, someone who never would have pulled a gun on police as testified by the officer who shot and killed him and wound up charged with manslaughter. The officer was defended by two brilliant lawyers, Roy Black and Mark Seiden. The defense presented a 40-page memorandum of law that convinced the trial judge to set aside 404b so the jury could hear from an elderly woman who was robbed and brutalized by the deceased. They won an acquittal, and that woman’s testimony sure didn’t hurt. In years since, many other attorneys have taken this approach, often working from the same memorandum, to allow juries to see the true faces of dead criminals who forced decent people to shoot them in self-defense.

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Today’s Reality

Things are not as we wish them to be; things are as they are. In most jurisdictions, you can’t expect the jury to know of prior bad acts by your opponent if the time comes when that jury must judge you for shooting that opponent. Only if you knew of your opponent’s previous crimes will you be able to introduce them. That’s because that knowledge is relevant—indeed, maybe foundational—to your decision to use force against him as a last resort.

The fact is, even if you live in Massachusetts with the Adjutant and Pring-Wilson precedents, or Arizona with the Fish precedent, there are no guarantees.

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Case Five, Arizona: A young husband and father is attacked in his front yard by three people. One is a tall, physically strong woman who studies Brazilian jiu-jitsu and writes on her Facebook page, “I love to grapple.” Another is a buff male who spends a lot of time in a gym and sees himself as a future Navy SEAL. Being beaten, feeling himself about to lose consciousness, the victim draws his Glock 19 and fires, wounding both of the individuals described. He is charged with aggravated assault. The jury deadlocks in his first trial in Tucson. By the time of his second trial, the Fish precedent has come down, but the judge still refuses to allow the facts about his opponents’ abilities to cause harm to go in front of the jury. After a second hung jury, the prosecution gives up and the young man gets his life back.

Bottom Line

In most parts of the country it’s more likely than not that prior bad acts by your assailant won’t be allowed in evidence if you go to trial. This will make it all the more important for you to be able to articulate what you did know at the moment you had to use force in defense of yourself or other innocent persons. You want to be able to convince a jury of ordinary, reasonable and prudent people that if they knew what you knew at the moment, they would have pulled the trigger, too.

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  • Zack Gobah

    But in all of these cases, the perp attacked someone, and forced that person to shoot in self-defense; why would the criminal history of the perp matter?

    • BeeKaaay

      Because the perp started fights in the past, and clearly started the fight this time. The perp cannot be painted as an innocent person, but as a thug.

  • Edward P Fahey Jr

    There are very important execptions to the general rule contained in 404(b). Read the very next sentence of the rule, and you will see that “other crimes” evidence may be admissible, if offered for “another purpose;” such as: proof of motive, opportunity, intent, preparation, plan, et cetera. The list of exceptions is only illustrative, not exhaustive. A good defense lawyer knows how to get prior bad acts of the dead man into evidence using the listed “loopholes.” So, Rule 404(b) is not an absolute ban on the jury finding out about the prior bad acts of the dead guy. Note that 404(b) applies to the other bad acts of “a person.” and, that “a person” could be the defendant, the victim, or a witness, or just about anybody.

  • petedub

    As a contributor to other parts of the Federal Rules of Evidence, it is my view that 404(b) is being misused in this context if it deprives the jury of details about the assailant’s previous attacks.

    The assailant’s proclivity to commit violence is not the issue, nor is the accused victim’s knowledge (or not) of the assailant’s background. That is why, under 404(b), the assailant’s prior bad acts cannot be used to prove a proclivity to commit violence — which has nothing to do with the accused victim’s guilt. It really represents defense counsel resorting to discrediting of the assailant, which has no more place in a courtroom than the BS too many prosecutors do when they try to paint defendants as bad people. Behavior counts, not who the people are, which is why Lady Justice wears a blindfold.

    The issue is the reasonableness of the accused victim’s use of force in defending against the assailant’s attack. The assailant’s prior bad acts obviously do not prove that the accused victim was justified in using force in self defense because the assailant was a bad person with a mean streak — because the accused victim typically does not know that. But, the assailant’s prior bad acts can show that the accused victim was honest about the details of the attack and was correct when he assessed (under extreme duress) that the attack required the use of force to prevent bodily harm.

    Q “Officer Cop, the investigation file shows that Mr. Victim said the following to describe Mr. Deadguy’s attack, doesn’t it: [Mr. Victim’s description of the attack].”

    A “Yes.”

    Q. “That description of Mr. Deadguy’s attack was consistent with Mr. Deadguy’s attack on [name of previous victim] on [date], isn’t that right?”

    Prosecutor objects under 404(b).

    Defense counsel responds: “Your Honor, we are not using the previous attack to prove anything about Mr. Deadguy. Mr. Victim obviously did not know Mr. Deadguy had previously attacked [name of previous victim]. We are not saying that Mr. Deadguy had a violent streak, but rather that Mr. Deadguy’s attack on Mr. Victim was similar to Mr. Deadguy’s attack on his previous victim. The jury may draw two conclusions from this similarity. The first conclusion is that Mr. Victim was being truthful in describing the attack. The second conclusion is that Mr. Victim was reasonable in his fear that the behavior he was dealing with — not the person he saw, but the behavior he saw — created a threat of bodily harm because we later learned that Mr. Deadguy’s previous similar behavior seriously injured Mr. Deadguy’s previous victim. We would be satisfied with a 404(b) charge that the jury is not to consider Mr. Deadguy’s previous attack as evidence that Mr. Deadguy had a violent streak. But the jury may hear and consider those facts to see that Mr. Victim was credible when relating the attack and that Mr. Victim was reasonable in his fear — under extreme duress that the rest of us thankfully do not have to deal with here in the courtroom — that the attack he was facing threatened bodily harm.”

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  • You always hope the plaintiff’s lawyer or the prosecutor will assert or offer evidence that the bad guy wasn’t the sort of person who would attack someone. Not likely a prosecutor would do this but a plaintiff’s lawyer might. Then all his past violence becomes admissible.

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