Sunday, January 03, 2010

victim's specific acts --> victim's character --> victim's conduct ?

In State v. Fish, 213 P.3d 258, 263-272 (Ariz. Ct. App. 2009) the Arizona Court of Appeals refuses to follow Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005), and abandon the prevailing rule that when character, or disposition, is admissible in a criminal trial to show an alleged victim's conduct, the victim's conduct may be shown only by opinion or reputation and not with victim's specific acts. See the node Character of victim may be shown only by reputation or opinion in the evidence module of Spindle Law. The court distinguishes the use of a person's specific acts when (i) a victim's specific acts are known to a party such as a criminal defendant and the specific acts are introduced to show a legally-material fact such a defendant's fear of victim to support a defense such as self-defense and (ii) the character, or propensity, of a person is an essential element of a claim, charge, or defense.

Arizona's court of appeals graciously cites my revision of vol. 1 of Wigmore's monumental treatise on the law of evidence -- and I am appropriately grateful. However, I personally now favor the approach now taken in Massachusetts. Cf. Character Traits as Reference Classes and A Constitutional Right to Offer Character Evidence?.

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