BRILLIANT. BOLD. EFFECTIVE.
Introducing Prior Act Evidence of the Alleged Victim
In criminal cases in Denver and Colorado courts, the actions of an alleged victim can be important pieces of evidence in defending a person accused of a crime. In particular, if a defendant is charged with assault and is asserting self-defense as an affirmative defense, prior acts of the alleged victim may be highly relevant in establishing that the defendant had a reasonable belief that the alleged victim was going to attack him. For example, if the alleged victim has previously attacked the defendant multiple times, then the defendant’s knowledge of those prior attacks is relevant to his state of mind and would help show he reasonably believed the alleged victim was going to attack him again when the defendant used force against the alleged victim.
However, under the Colorado Rules of Evidence (“C.R.E.”) character evidence is generally inadmissible to “for the purpose of proving that [a person] acted in conformity therewith on a particular occasion . . . . “ C.R.E. 404(a). The purpose of this general prohibition on character evidence is that admission of prior acts tends to lead to the inference that a person, who previously acted in a certain way or performed a certain action, would perform the same action in relation to the charged offense. In essence, the rule is designed to prevent the inference that a particular person generally has bad character and therefore, must have acted in conformance with that bad character on any particular occasion. See People v. Griffin, 224 P.3d 292 (Colo. App. 2009).
However, despite the general prohibition on character evidence in Colorado and Denver courts, there are specific exceptions where it is admissible. One particular exception is character of the alleged victim in a criminal case. More specifically, C.R.E. 404(a) provides that “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” is admissible evidence. The reasoning behind this exception is that the defendant has a constitutional right to present evidence that limits his culpability. However, note that providing evidence of an alleged victim’s character can, in some circumstances, open the door for the prosecution and allow the admission of character evidence of the defendant in order to rebut inferences arising from admission of the alleged victim’s character. See C.R.E. 404(a)(1) (indicating evidence of a defendant’s trait of aggression can be admitted by the prosecution in order to rebut evidence showing the alleged victim’s tendency for aggression).
An example of when a defendant may want to introduce character evidence of an alleged victim is when the defendant is charged with assaulting an alleged victim and the defendant is asserting self-defense. As discussed above, in that circumstance the defendant’s knowledge of the alleged victim’s character is relevant to his self-defense claim. More specifically, since self-defense requires a reasonable belief that the attacker is going to inflict harm, if the defendant has witnessed the alleged victim attack multiple individuals, the defendant has knowledge of the alleged victim’s propensity to physically assault others and that knowledge is relevant to whether the defendant reasonably believed the alleged victim may attack him. Accordingly, the alleged victim’s character for aggression would be admissible under 404(a)(2) and the defendant may want to introduce evidence of the alleged victim’s prior acts to bolster his self-defense claim. Importantly, however, for self-defense only prior acts that the defendant is aware of would be admissible as character evidence against the alleged victim. People v. Jones, 635 P.2d 904 (Colo. App. 1981).
Lastly, where character evidence is admissible against an alleged victim, evidence of the alleged victim’s character may only be offered as provided in C.R.E. 405. Specifically, character evidence may only be admitted by testimony in the form of reputation or an opinion; specific-instances of conduct may only be offered where a character trait is “an essential element of a charge, claim or defense” or can be inquired on during cross-examination. Id. See People v. Jones, 635 P.2d 904 (Colo. App. 1981) (“When the purpose of the evidence is to show a pertinent character trait of the victim from which it may be inferred that he was the initial aggressor, that trait may be shown by specific instances of past conduct.”).