Massachusetts Supreme Judicial Court on Specific Acts to Show Victim's Character

In Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2004, opinion corrected 2005) the Massachusetts Supreme Judicial Court held that the criminal defendant in a homicide case had the right to introduce specific acts of the victim on other occasions to show that the (alleged) victim was the aggressor in the incident that led to the victim's death.

This above statement of the Massachusetts court's holding is as dry as dust. The concrete facts of the case have more punch.

The defendant, a woman, was an employee of an "escort service." She went to the home of the "victim" to give him a "full body massage." Defendant killed the victim with a knife. She claimed she did so in self-defense after an argument erupted after the "victim" demanded that defendant have intercourse with him and, she claimed, she refused.

To show that the "victim" was the aggressor, defendant offered evidence showing the alleged victim's previous violent behavior and reputation for violence. Except for an incident involving victim's use of a crowbar in some other fracas, the trial court rejected these offers.

In a footnote the Massachusetts Supreme Judicial Court recited:

In connection with Adjutant's sentencing, evidence of three violent acts committed by Whiting [the victim] while he was intoxicated and within three months of his death was presented to the court. In one of the instances, Whiting, while on cocaine, allegedly chased after his neighbor "like a raging bull" when confronted about vandalizing the common yard. In another, he allegedly threatened two neighbors with a butcher knife. And in the third, he allegedly threw boiling water on a friend with whom he was arguing.

Should such specific evidence about the alleged victim's behavior on other occasions be excluded (during the guilt phase of the trial) and should the defendant be limited to evidence about the victim's reputation for violence in order to save time and reduce the risk of "prejudice"? The Massachusetts Supreme Judicial Court said "no."

Do you think the excluded evidence had probative value? Do you think it had a lot of probative value? Do you think it had more -- or much more -- probative value than did evidence about the reputation of the victim for violence? Do you think a jury should have heard such evidence of specific violent acts of the alleged victim -- acts such as threatening neighbors with a butcher knife or throwing boiling water on a "friend"? Do you think that if defendant's conviction had not been reversed, this story had the makings of a good (or bad) Hollywood movie?

What do you think now about the proposition, "Character has little probative value"? Would you now say, "Well, there is character and then there is character. Some character evidence seems to have a considerable amount of value"?

Knowing what you know about the "victim" Whiting in Adjutant, would you have allowed your teenage daughter or son to have a late-night dinner with Whiting if Whiting had survived his encounter with defendant Adjutant? (Do you think the last question is nothing more than provocative rhetoric. Or does my question make a serious point?)

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Due Process and the Victim's (Alleged) Character

The last time I looked, Maine did not allow a criminal defendant to introduce evidence of the alleged victim's character or propensity to show legally-material conduct by the victim -- e.g., to show that the victim was the aggressor (to show that, e.g., defendant assaulted or killed the alleged victim in self-defense).

Is it conceivable that Maine's rule violates a criminal defendant's due process right to a fair hearing and to present a defense?

I think the answer is that no court today would say "yes." But should judges perhaps change their minds about this?

Most states do allow criminal defendants to offer a pertinent character trait of the alleged victim; Maine is the outlier. But do states violate the due process clause, or should they be held to do so, if they refuse (as they do) to allow a defendant to show an alleged victim's propensity by offering evidence of the victim's acts? Testimony that the victim had the reputation of being a violent person doesn't have much punch and in some instances -- depending on the victim's character -- the evidence about the victim's character should have much punch.

Similar questions can be asked about a possible third-party perpetrator, a person who allegedly committed the crime that a defendant is charged with having committed.

N.B. Specific acts, wrongs, or crimes of the alleged victim may find their way into the courtroom even under today's law of evidence. For example, an alleged victim's threats against a defendant accused of murdering the victim are admissible to support a defense such as self-defense. (Such threats are not viewed as a "character trait" or a "propensity.")

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A Constitutional Right to Offer Character Evidence?

An important dictum noted by Joannes Untalan Vinarao-Pilapil:

United States v. Williams, 458 F.3d 312, 317 n. 5 (3d Cir. 2006):

We acknowledge that there might be cases in which an application of Rule 404(b)'s prohibition against propensity evidence arguably encroaches on a defendant's right to present a full defense. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (holding that "the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense") (internal quotation marks and citations omitted). The Advisory Committee Notes following Rule 401 explain that rules such as Rule 404 and those that follow are meant to prohibit certain types of evidence that are otherwise clearly "relevant evidence," but that nevertheless create more prejudice and confusion than is justified by their probative value. This, however, is a sweeping and non-individualized judgment, and the drafters have provided exceptions to this general rule for certain types of crimes. See Rules 413, 414 & 415, Federal Rules of Evidence (providing that evidence of the defendant's commission of an offense of sexual assault or child molestation is admissible for any purpose). Under exceptional circumstances, therefore, it could plausibly be argued that a defendant has a constitutional right to present propensity evidence otherwise barred by Rule 404(b). See Holmes v. South Carolina, 126 S. Ct. 1727, 1731- 1733, 164 L. Ed. 2d 503 (2006) (observing that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials" and that rules restricting the ability of a defendant to offer evidence that another person committed a crime are "widely accepted," but that evidence rules that significantly infringe upon the interest of the accused and are disproportionate to the purposes they are designed to serve are impermissible). But we need not reach this question here...

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