by Prof. William A. Schroeder¹

Evidence of the character or reputation of a crime victim is admissible only in limited circumstances. Evidence of the character of a victim may not be offered by the state to show that the victim was a good person² or by the defendant to show that the victim was a bad person.³ Moreover, in prosecutions for sexual offenses the defendant's ability to introduce evidence of the victim's character is limited by Missouri's Rape Shield Statute.⁴

Analogous rules apply in civil cases. There, evidence of character is ordinarily inadmissible,⁵ except where character is at issue, because it an integral part of a claim or defense,⁶ or is a factor in assessing damages.⁷

B. Offered by Defendant

A criminal defendant who claims self-defense,⁸ or defense of habitation,⁹ may sometimes introduce evidence of his victim's quarrelsome, violent, or turbulent character or actions to support those claims.

In order to introduce such evidence, the defendant must actually introduce evidence of self-defense or defense of habitation.¹⁰ Evidence of a victim's violent actions or a victim's violent character is not admissible "when the victim of the assault was being unoffensive at the time of the assault."¹¹

The evidence must relate to the victim of the crime with which the defendant is charged. A defendant who claims self-defense may not introduce evidence of the character or actions of persons who were not victims in the case before the court, unless those acts prompted the defendant's actions.¹²

Evidence of the victim's violent or turbulent character may be relevant for two separate but related theories. First, evidence of a victim's violent and turbulent character is relevant when self-defense is claimed to show that the victim acted in a manner consistent with his character and was the first aggressor.¹³ Second, this evidence is often relevant to show that the defendant's actions were justified because, at the time of his act of self-defense, he feared the victim because he knew the victim's reputation as a violent or turbulent person,¹⁴ or because he was aware of specific acts by the victim that were of such a nature as to be capable of contributing to the defendant's fear.¹⁵ When used in the latter fashion, evidence of character is not being used to prove conduct in conformity therewith, and the rules limiting the use of character evidence when offered for this purpose are inapplicable. Instead, general rules of relevancy govern.

1. Evidence of Defendant's Fear or Apprehension

a. Evidence of Victim's Violent Reputation to Show Fear

When a defendant seeks to support a claim of self-defense based on his reasonable fear of the victim, that fear may be proved by evidence of the victim's general reputation for violence and turbulence at the time of the defendant's actions.¹⁶ Because it is the defendant's knowledge of the reputation that allegedly motivated the defensive conduct, the courts demand that this knowledge be shown.¹⁷ "[T]he defendant [need not] personally testify to such knowledge."¹⁸ Knowledge can be inferred from other facts, and the effect of that knowledge on the defendant's mental state can, perhaps, also be inferred.¹⁹ However, the assumed effect of that knowledge on the defendant can be nullified by the defendant's own testimony that he was not, in fact, apprehensive.²⁰

Evidence of a victim's reputation for dealing in stolen goods is not relevant to whether the defendant might reasonably have feared the victim.²¹ Similarly, evidence of "a general, nonspecific concern that a [particular] locale poses a potential threat," or that another person, not the victim, possessed guns and sold drugs, is not relevant or admissible on the issue of whether the defendant had a reasonable fear of the victim.²²

b. Evidence of Specific Acts of Violence to Show Fear

The defendant's fear or apprehension may be shown by evidence of specific acts of violence engaged in by the victim and directed at the defendant,²³ as well as through evidence of specific acts directed against others, if he was aware of those acts and "the acts sought to be established are reasonably related to the crime with which the defendant is charged."²⁴ The trial court may, in its discretion, admit evidence of such acts if they are of a "quality such as to be capable of contributing to the defendant's fear of the victim,"²⁵ and if the defendant lays a "proper foundation" by introducing other evidence that raises the issue of self-defense,²⁶ demonstrating that he was aware of the acts in question, and showing that the acts were "not too remote in time."²⁷ The Supreme Court of Missouri, in State v. Waller, said that if admitted, the evidence may be considered solely on the issue of "the reasonableness of the defendant's apprehension" of harm and not for the purpose of establishing that the victim was the aggressor.²⁸

Finally, evidence that an alleged murder or assault victim was drunk and violent may be received where it is relevant to a claim of sudden provocation or self-defense because of the fear the victim's condition engendered in the defendant.²⁹ However, evidence of the victim's blood alcohol concentration (BAC) usually has little probative value because it does not show either violence or that the defendant knew of the victim's intoxication.³⁰

c. Evidence of Threats to Show Fear

Missouri courts have said that a defendant who claims self-defense may introduce evidence of threats made against him by the victim, whether or not these were communicated to the defendant, to show the reasonableness of the defendant's apprehension of danger.³¹ However, according to MAI-CR2d 2.41.1, such threats must have been "known by or communicated to the defendant."³² In either event, when used to show apprehension, the victim's statements are not hearsay.³³

d. General Observations

Where evidence of the victim's violent reputation, or of specific threats or acts of violence, is offered to show the defendant's reasonable apprehension, it is unimportant whether the reputation reflects reality or whether the alleged incident(s) actually occurred. The important question is the defendant's reasonable belief-whether he or she was fearful. Even a reputation not grounded in reality, or incidents that never occurred, could engender fear if the defendant knew of the victim's reputation or believed that the incidents occurred.

The important question for the trial court in deciding whether to admit evidence of the victim's reputation or actions to show fear is whether they are "of quality such as to be capable of contributing to the defendant's fear of the victim."³⁴ Evidence that the acts did not occur will rarely be relevant and should not be admitted unless it also tends to show a lack of knowledge.³⁵

2. Evidence that the Victim was the First Aggressor

a. Evidence of Reputation to Show First Aggression

When evidence of self-defense is introduced, evidence of a victim's violent and turbulent character may also be offered by the defendant to show that the victim acted consistently with his character and was the first aggressor.³⁶ Some cases suggest that Missouri law does not permit the use of evidence of a victim's character for this latter purpose.³⁷ This, however, is not the law. In fact, evidence of the victim's reputation is admissible to prove his character in order to show who was the first aggressor.³⁸ However, the defendant may not show the victim's disposition toward violence through evidence of the victim's mental illness.³⁹

b. Evidence of Specific Acts to Show First Aggression

Evidence of the victim's violent conduct toward the defendant is admissible to show who was the aggressor.⁴⁰ In State v. Waller,⁴¹ the Supreme Court of Missouri said that evidence of specific acts of violence against persons other than the defendant could, if admitted, be considered solely on the issue of the reasonableness of the defendant's apprehension of harm and not for the purpose of establishing that the victim was the aggressor.⁴² It now appears, however, that evidence of specific instances of the victim's violent conduct may also be introduced to show that the defendant was the first aggressor.

In State v. Oates,⁴³ the defendant, on direct examination, described an incident in which his victim (Hopkins) had chased a third person and attacked him. This testimony, said the Supreme Court of Missouri, was admissible because it lent "credibility to Oates' self-defense claim by making an inference that Hopkins was the first aggressor."⁴⁴

c. Evidence of Threats to Show First Aggression

A victim's threats against the defendant are highly probative and admissible on the question of who was the first aggressor.⁴⁵ In this context, it is irrelevant whether the threats were known to the defendant.⁴⁶

Threats to harm someone other than the defendant may also have probative value on the question of who was the first aggressor, either to show propensity or to show motive, intent, or the like.⁴⁷ In 1986, in State v. Hafeli,⁴⁸ the Court of Appeals held that a defendant could not introduce evidence of threats against persons other than the defendant to prove either reasonable apprehension or to show who was the first aggressor.⁴⁹ The Hafeli court, however, relied on the then-existing rule that a defendant could not introduce evidence of specific acts of violence directed against members of his family.⁵⁰ Given that the decisions establishing that rule were overruled in State v. Waller,⁵¹ threats against persons other than the defendant should now be admissible on the same terms as acts of violence against others.

In a related context, the Supreme Court of Missouri recently held in State v. Barriner⁵² that a threat by the defendant to kill that witness' mother and daughter was not admissible to show defendant's motive to kill the witness.⁵³ The Barriner Court was concerned that this evidence "may have led the jury to convict appellant on propensity evidence."⁵⁴ In the self-defense setting, however, proof of propensity is a permissible goal, not an unacceptable collateral consequence. Therefore, the tendency of the evidence to show propensity should not result in its exclusion.

d. General Observations

When the evidence of violent reputation or behavior is offered on the question of who was the first aggressor, the probative value of the evidence is not increased or decreased by whether the defendant knew of the reputation or acts. Nonetheless, some cases suggest that even in this setting a "defendant must [also] show that he was aware of the victim's violent reputation or of the specific act or acts of violence."⁵⁵ However, in at least one case, the Supreme Court of Missouri inferentially suggested that such knowledge need not be shown where the evidence is offered to show propensity and, thus, first aggression.⁵⁶ This is the better rule.

Where evidence of specific instances is offered to prove propensity, the logic of the offering demands that the incident actually have occurred; if it did not occur, it does not show propensity. For example, in Oates it is possible the incident in question never occurred. Certainly, the defendant had strong reason to invent it and the victim, being dead, was in no position to refute it.

Where a person admits on direct examination or on cross-examination to the conduct in question, problems of proof are minimal. The same is true where there was a conviction for the conduct at issue. Jurors are entitled to rely on an admission or a conviction, and there is only a limited likelihood they will be confused or misled by these things.

Absent such solid proof, evidence of specific instances can easily give rise to factual disputes and mini-trials.⁵⁷ For that reason, courts should use care in receiving evidence of specific instances to prove a victim's propensity, especially where there is evidence of only one such incident.⁵⁸

C. Rebuttal by the State

1. Evidence About the Victim

If a defendant introduces evidence of a victim's character for violence and turbulence, the state may respond with evidence of the victim's good reputation for peacefulness and nonviolence.⁵⁹ If evidence of the victim's reputation is offered by either side, cross-examination can bring out specific instances of behavior that are inconsistent with that reputation.⁶⁰

If the defendant introduces evidence of specific instances of the victim's violent behavior, the state may respond with evidence of specific instances of the victim's non-violent behavior.⁶¹ It is not clear whether evidence of specific instances can be responded to with evidence of reputation. However, there is no sound reason why the state's response has to take the same form as the defendant's evidence.⁶²

When offered to show a lack of a propensity for violence, evidence about the victim is relevant and should be admissible whether or not the defendant knew of that reputation. However, if offered on the question of the defendant's fear, evidence of peaceful reputation or non-violent behavior is only relevant if it was known to the defendant.⁶³

2. Evidence About the Defendant

If evidence of the victim's violent character is offered to show that the victim was the first aggressor, Missouri allows the state to respond with evidence of the defendant's violent character.⁶⁴ That evidence may be in the form of evidence of defendant's bad reputation for these traits,⁶⁵ or it may be in the form of evidence of specific instances of the defendant's violent behavior.⁶⁶

The state may not respond to evidence of the defendant's good character for peacefulness with evidence of the victim's good character for the same trait.⁶⁷ However, a witness who testifies to a defendant's good reputation for peacefulness may be cross-examined about incidents that are inconsistent with reputation.⁶⁸

There is a strong argument for allowing the state to present evidence of the defendant's violent character where the defense offers evidence of the victim's violent character to show that the victim acted in a manner consistent with his propensity for violence and was, therefore, the first aggressor. If the defendant can show his victim's propensities, fairness suggests that the state should be able to balance this with evidence of the defendant's propensities.⁶⁹ As the Court noted in Oates, when "Oates had intentionally injected the issue of [his victim's] . . . violent nature into the case . . . he opened himself up for inquiry into his own actions that might bring his own violent nature into question."⁷⁰

If the defendant offers evidence of the victim's violent character only to show fear or apprehension, character is not at issue; only the defendant's state of mind is at issue. In this situation, the state should not be permitted to respond to evidence about the victim with evidence of the defendant's violent character or with evidence of specific acts of violence in which the defendant has engaged.⁷¹

D. Civil Cases

Only a few civil cases have dealt with the issues raised in this article. It appears that in civil actions for assault, where self-defense is claimed, evidence of the victim's violent or turbulent reputation may be relevant to show that the victim acted in a manner consistent with his character and was the first aggressor.⁷² Second, this evidence is often said to be relevant to show that the defendant's actions were justified because at the time of his act of self-defense he feared the victim because he knew the victim's reputation as a violent or turbulent person.⁷³ If a defendant introduces evidence of a victim's character for violence and turbulence, the plaintiff may respond with evidence of the victim's good reputation for peacefulness and nonviolence.⁷⁴

It is not clear whether evidence of specific acts of violence is admissible in civil cases to show either who was the first aggressor or to show the defendant's apprehension.

E. Conclusion

Where self-defense is claimed, Missouri courts do not always distinguish between evidence offered to prove state of mind and evidence of character offered to prove conduct. Where state of mind is an issue, Missouri's evidentiary rules have evolved over the years to where they are reasonably clear and represent a fair balance of probative value against concerns such as undue consumption of time and confusion of the issues. Missouri law governing the use of evidence of character and evidence of specific acts, to prove conduct consistent with that character or with those acts, is still evolving.

One judge on the Court of Appeals has opined that character evidence should not be allowed at all because it "tends to confuse more than it helps" and "leads to abuses."⁷⁵ No doubt, in trial settings, evidence of character and other acts can sometimes obficscate and confuse more than it helps. Even the worst person can probably find someone who will say good things about him, and even the best people have detractors. Cross-examination of character witnesses can reveal insignificant rumors and incidents, inconsistent with the trait of character alleged, that often are misleading and serve only to confuse the trier of fact.⁷⁶ Specific actions, to the extent evidence of those is allowed, may not be representative.⁷⁷

In addition, people sometimes act in ways inconsistent with their character or with their actions in the past. Good people sometimes do bad things and bad people sometimes do good things. Finally, people sometimes change. These realities should go to weight, however, not to admissibility.

Where self-defense is claimed, evidence of character and specific acts should ordinarily be received where it is offered to prove conduct consistent with that character or consistent with those acts. This is so for two reasons. First, because evidence of character and actions is admissible to prove state of mind, jurors, despite the best instructions and best intentions, will sometimes misuse that evidence to prove conduct consistent with the traits claimed.⁷⁸ Second, evidence of character or of specific acts will often help the factfinder in cases where the evidence is close. In a recent book, the author observed that, especially in cases where self-defense is claimed, the jurors would like to know more about both the defendant and the victim.⁷⁹ Character evidence can sometimes be useful information for the trier of fact. In our personal and professional lives we rely heavily on evidence of character and propensity. We sort through various, and sometimes conflicting, impressions in our minds and come to a conclusion. In effect, we hold a mini-trial in our heads.

The task of assessing character evidence is often more difficult in the courtroom than it is in our heads. That reality, however, should not preclude the use of character evidence, including evidence of specific instances, to prove conduct and propensity where self-defense is claimed. Where specific acts resulted in a conviction, there are no present serious problems of proof or undue consumption of time, and the evidence should ordinarily be received. Similarly, if, as in Oates, the evidence is elicited on cross-examination, and the witness simply acknowledges the acts, little time is consumed. Here again the evidence should ordinarily be received.

Where the acts in question are disputed, there is more of a problem. If extrinsic evidence is offered, there will be direct examination, cross-examination, and possibly rebuttal witnesses. The result is the consumption of a great deal of time to prove something that may not be especially important.⁸⁰

Consistent with the thinking behind the collateral issue rule, the trial judge should have discretion to limit evidence of specific instances where there is a reasonable dispute over whether the incident occurred. Such an approach would be little different from that toward which Missouri courts seem to be moving. It would also be consistent with the approach taken in Waller, where the Supreme Court allowed the use of evidence of specific actions, involving persons other than the defendant, to prove the defendant's apprehensive state of mind. Analogizing to Waller, evidence of specific acts by the defendant or the victim should, in the discretion of the court, be admissible to prove propensity if they are not too remote, if a proper foundation is laid, and if they are "reasonably related to the crime with which the defendant is charged."⁸¹

Endnotes

¹ The author is a member of The Missouri Bar and a professor of law at Southern Illinois University in Carbondale, Illinois. He received his J.D. from the University of Illinois and his LL.M. from Harvard Law School, and is the author of West's Courtroom Handbook on Missouri Evidence and West's Missouri Evidence. This article is based on materials presented at the Trial Skills-Evidence Seminar for Missouri judges in Jefferson City on June 7-8, 2001.

² State v. Clark, 747 S.W.2d 197, 200 (Mo. App. E.D. 1988) (stating that inquiry into "victim's lack of prior arrests" could hardly be characterized as "anything other than character evidence" and holding that it was error, although not prejudicial, for the prosecutor to ask rape prosecutrix on direct examination whether she had "ever been arrested for a crime?"); see also State v. Bolhofner, 82 S.W. 2d 894, 896 (Mo. 1935) ("evidence of the good character of the deceased in a homicide case is inadmissible unless it is put in issue by [the] defendant."); cf. State v. Isa, 850 S.W.2d 876, 895 (Mo. banc 1993) (evidence that victim's "body was free from drugs" and alcohol was not character evidence and hence was not inadmissible).

³ See State v. Harris, 781 S.W.2d 137, 145 (Mo. App. S.D. 1989) (no error in refusing evidence that murder victim "was a drug dealer, a liar, and an untrustworthy person.").

⁴ See § 491.015, RSMo 2000. The so-called Rape Shield Statute exists to protect victims; it cannot be invoked by the defendant. State v. Baker, 23 S.W.3d 702, 714 (Mo. App. E.D. 2000). If a defendant introduces evidence of a victim's sexual activity, the prosecution may introduce evidence in rebuttal. See, e.g., State v. Smith, 727 S.W.2d 932, 935-36 (Mo. App. E.D. 1987) (in a prosecution for sodomy where the complainant's moral character was attacked by evidence of sexual activity, there was no error "in allowing two rebuttal witnesses to testify as to complainant's [good] reputation and moral character.").

⁵ Haynam v. Laclede Elec. Coop., Inc., 827 S.W.2d 200, 205-08 (Mo. banc 1992); Lohmann v. Norfolk & Western Ry. Co., 948 S.W.2d 659, 671 (Mo. App. W.D. 1997).

⁶ See, e.g., Downing v. Downing, 537 S.W.2d 840, 843 (Mo. App. W.D. 1976) ("[t]he morals and character of a parent are proper subjects of inquiry when the custody, and hence the welfare, of a child is under consideration.").

⁷ See, e.g., Foster v. Chicago B. & Q. R., 14 S.W.2d 561, 572 (Mo. 1928) (evidence of plaintiff's previous good reputation was admissible in an action for malicious prosecution).

⁸ See, e.g., State v. Blair, 305 S.W.2d 435, 436-37 (Mo. 1957) (evidence of homicide victim's reputation for violence and turbulence was improperly excluded); see also State v. Isa, 850 S.W.2d 876, 895 (Mo. banc 1993) (stating rule); State v. Buckles, 636 S.W. 2d 914, 922 (Mo. banc 1982) (holding that the evidence in question was inadmissible but stating that "[o]n the issue of self-defense there can be no doubt of the rule that evidence of the deceased's reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed; but such evidence must be proved by general reputation testimony, not specific acts of violence, and defendant must show that he knew of such reputation when the issue is reasonable apprehension."); State v. Duncan, 467 S.W.2d 866, 868 (Mo. 1971) (stating rule and discussing its history).

⁹ See State v. Ivicsics, 604 S.W.2d 773, 781 (Mo. App. E.D. 1980) (stating that "[e]vidence of [homicide victim's] reputation for violence would be admissible to support defendant's defense of habitation theory" but rejecting proffered evidence of specific acts).

¹⁰ State v. Hoelzer, 493 S.W.2d 703, 705-06 (Mo. App. W.D. 1973) ("Defendant is clearly wrong in the argument that his opening statement was a sufficient foundation for the evidence in question. The rule is that a foundation for this type of evidence must be laid `by evidence' of self-defense.")

¹¹ State v. Robinson, 831 S.W.2d 667, 670 (Mo. App. W.D. 1992).

¹² State v. Harrison, 24 S.W.3d 215, 219-20 (Mo. App. W.D. 2000) (despite defendant's claim that shooting was self-defense, there was no error in excluding evidence of acts of violence by two persons who were not victims in this case because there was no evidence that their acts prompted the defendant's actions and no evidence that defendant was aiming at them when he fired the fatal shot); State v. Skinner, 734 S.W.2d 877, 884 (Mo. App. E.D. 1987) (trial court did not err in refusing to allow defendant, who was on trial for the murder of one of three people in a car, to introduce evidence that a different person among those three - whom defendant also shot - had a "reputation as a violent person" and had engaged in violence toward the deceased victim, because the evidence "was irrelevant to the issue of what defendant reasonably believed."); State v. Gibson, 502 S.W.2d 310, 315 (Mo. 1973) (no error in excluding evidence of threats by a non-victim against defendant that were made in conversation with the defendant's wife who was later defendant's victim. Such threats "had no probative value on defendant's fear of his victim, Minnie, or on who was the aggressor between defendant and Minnie.").

¹³ State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982) (stating rule but holding that evidence that victim was "insane" was not admissible on this issue); State v. Robinson, 831 S.W.2d 667, 670 (Mo. App. W.D. 1992) (stating that "when self-defense is asserted, a victim's reputation for violence is generally admissible on the question of who was the aggressor," but holding evidence inadmissible); State v. Hafeli, 715 S.W.2d 524, 530 (Mo. App. E.D. 1986) (noting the "duplicate role [of such evidence] as proof of fact of the aggressor and as proof of the fact of the reasonableness of defendant's apprehension at the time he resorts to physical force for defense.") (dicta)

¹⁴ See State v. Blair, 305 S.W.2d 435, 436 (Mo. 1957) ("Evidence that deceased bore the reputation of having a turbulent or violent disposition or character is competent where, as here, the defense is self-defense.") (quoting State v. Parker, 214 S.W.2d 25, 27 (Mo. 1948)).

¹⁵ See State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991); see also State v. Hicks, 438 S.W.2d 215, 219-20 (Mo. 1969); State v. Peoples, 621 S.W.2d 324, 326-28 (Mo. App. W.D. 1981) (admissible acts of violence by the defendant upon the victim may include the blow that precipitated the act of alleged self-defense).

¹⁶ See, e.g., State v. Hicks, 438 S.W.2d 215, 219 (Mo. 1969) (noting that the defendant and others testified that homicide victim "was known to have a reputation for turbulence and violence."); State v. Blair, 305 S.W.2d 435, 436 (Mo. 1957) ("Evidence that deceased bore the reputation of having a turbulent or violent disposition or character is competent where, as here, the defense is self-defense.") (quoting State v. Parker, 214 S.W.2d 25, 27 (Mo. 1948)); State v. Bounds, 305 S.W.2d 487, 490-91 (Mo. 1957) (noting that "five witnesses testified that [the decedent's] reputation for peace and quietude was very bad indeed."); MAI-CR2d 2.41.1.

¹⁷ See, e.g., State v. White, 909 S.W.2d 391, 394 (Mo. App. W.D. 1995) (no error in excluding evidence of victim's general reputation for violence because defendant did not testify that he was aware of that reputation); State v. Skinner, 734 S.W.2d 877, 884 (Mo. App. E.D. 1987) (there was no evidence that defendant knew of the victim's reputation and therefore "the evidence defendant sought to introduce was irrelevant to the issue of what defendant reasonably believed."); see also State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982) ("On the issue of self-defense . . . [the] defendant must show that he knew of such reputation when the issue is reasonable apprehension."); State v. Blair, 305 S.W.2d 435, 436 (Mo. 1957).

¹⁸ State v. Johns, 34 S.W.3d 93, 120 (Mo. banc 2000) (Wolff, J., dissenting).

¹⁹ State v. Johns, 34 S.W.3d 93, 120 (Mo. banc 2000) (Wolff, J., dissenting) (arguing that defendant's knowledge of victim's reputation for violence when drunk could be inferred from evidence that defendant "frequently drank with [victim] over a seven-month period," but not discussing whether defendant's fear could also be inferred).

²⁰ See State v. Nyhuis, 906 S.W.2d 405, 410-11 (Mo. App. E.D. 1995) (holding that once defendant - charged with killing his wife - admitted that his wife's violent actions against their sons on other occasions had not made him fearful, any further testimony about those acts was inadmissible).

²¹ State v. Hall, 982 S.W.2d 675, 681 (Mo. banc 1998).

²² State v. Harris, 870 S.W.2d 798, 809-10 (Mo. banc 1994) (no error in limiting cross-examination about these matters).

²³ See State v. Hicks, 438 S.W.2d 215, 219-20 (Mo. 1969); see footnote 16, State v. Peoples, 621 S.W.2d 324, 326-28 (Mo. App. W.D. 1981); see also State v. Hafeli, 715 S.W.2d 524, 530 (Mo. App. E.D. 1986) ("Evidence of . . . described acts of violence upon the defendant are admissible and serve a duplicate role as proof of fact of the aggressor and as proof of the fact of the reasonableness of defendant's apprehension at the time he resorts to physical force for defense.") (dicta); MAI-CR2d 2.41.1.

²⁴ State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991); see also State v. Harden, 823 S.W.2d 87, 89 (Mo. App. E.D. 1991) (remanding for new trial where defendant alleged at trial that the victim had threatened to cut his throat and the defendant "had knowledge that, a mere four months earlier, the victim had cut another man's throat.").

²⁵ State v. Waller, 816 S.W.2d 212, 214 (Mo. banc 1991); see also State v. Nyhuis, 906 S.W.2d 405, 410-11 (Mo. App. E.D. 1995) (victim's acts inadmissible because, by the defendant's own admission, they were not of such a quality as to be capable of contributing to defendant's fear).

²⁶ State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991). See e.g., State v. Howard, 896 S.W.2d 471, 485 (Mo. App. S.D. 1995) (no error in refusing to admit defendant's non-responsive statement, made during prosecution's cross-examination of him, that deceased had told defendant that he [deceased] "had killed a man in Arkansas." "Howard failed to lay any foundation for this evidence.")

²⁷ State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991). See, e.g., State v. Pipes, 923 S.W.2d 349, 353-54 (Mo. App. W.D. 1996) (no error in refusing to admit evidence under Waller because the incidents in question were "remote in time"[six and twelve years earlier] and neither had "a quality similar to the incident in the instant case.")

²⁸ State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991); State v. Harden, 823 S.W.2d 87, 89 (Mo. App. E.D. 1991).

²⁹ See State v. Jacoway, 11 S.W.3d 793, 797 (Mo. App. W.D. 1999) (stating rule).

³⁰ State v. Jacoway, 11 S.W.3d 793, 797 (Mo. App. W.D. 1999) (evidence that murder victim's blood alcohol concentration (BAC) was .186% was of marginal relevance and was properly excluded as cumulative because it showed only that decedent was drunk and not that he was violent); cf. State v. Bowman, 869 S.W.2d 901, 903 (Mo. App. W.D. 1994) (evidence of victim's BAC was irrelevant where victim tried to retreat and the defendant pursued him before shooting him; at this point, defendant was no longer acting in self-defense).

³¹ See, e.g., State v. Hendrix, 699 S.W.2d 779, 781-82 (Mo. App. S.D. 1985) (holding admissible statement that victim made to defendant and stating that "Missouri authorities hold that . . . evidence of communicated and uncommunicated threats made by the victim of an assault or murder are admissible in evidence to explain the conduct and apprehension of the defendant, the conduct and attitude of the victim, and to indicate which was the aggressor"); see also State v. Bounds, 305 S.W.2d 487, 490-91 (Mo. 1957) (where evidence was that defendant knew of the threats and "there was some evidence of self-defense and the evidence of threats was admissible upon the issues of who was the aggressor and the reasonableness of Raymond's [the defendant's] apprehension of danger in the circumstances."); State v. Finn, 243 S.W.2d 67, 72-74 (Mo. 1951); State v. Cavener, 202 S.W.2d 869, 874-75 (Mo. 1947) (stating that on retrial evidence of "uncommunicated threats," as well as evidence of communicated threats, should be "take[n] into consideration"); State v. Carroll, 62 S.W.2d 863, 868 (Mo. 1933) ("It has been held [that evidence of] uncommunicated threats made by the deceased against the defendant are competent as tending to show who was the probable aggressor," but such evidence is not admissible "unless the defendant knew of it.").

³² See State v. Peoples, 621 S.W.2d 324, 327-28 (Mo. App. W.D. 1981) (citing MAI, Criminal No. 2.41.1).

³³ State v. Hendrix, 699 S.W.2d 779, 781-82 (Mo. App. S.D. 1985).

³⁴ State v. Hall, 982 S.W.2d 675, 681 (Mo. banc 1998) (quoting State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991)).

³⁵ To the extent that the traditional rule, which barred evidence of violent acts against others when offered to show the defendant's fear was based on a fear of mini-trials over whether those events occurred, it was based on a false premise. See State v. Waller, 816 S.W.2d 212, 214 (Mo. banc 1991) (citing cases).

³⁶ State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982) (stating rule); State v. Robinson, 831 S.W.2d 667, 670 (Mo. App. W.D. 1992).

³⁷ See, e.g., State v. Clark, 747 S.W.2d 197, 200 (Mo. App. E.D. 1988) (stating that "[e]vidence of the character of a victim is not admissible in support of a contention of self-defense in order to show that the victim acted in conformity therewith and was the first aggressor.") (dicta) (quoting Mo.Evidence Restated, § 404(c) (Mo. Bar 1984)); see also MAI-CR 2.41.1 (discussing reputation only in terms of its relevance to state of mind).

³⁸ State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982) (stating Rule); State v. Robinson, 831 S.W.2d 667, 670 (Mo. App. W.D. 1992).

³⁹ State v. Buckles, 636 S.W.2d 914, 922-23 (Mo. banc 1982) (specifically rejecting argument that "in homicide cases involving self-defense, the rule should be expanded to allow evidence of the decedent's mental illness on the issue of who was the aggressor.").

⁴⁰ State v. Peoples, 621 S.W.2d 324, 328 (Mo. App. W.D. 1981); see also State v. Hafeli, 715 S.W.2d 524, 528 (Mo. App. E.D. 1986) (stating that "described acts of violence upon the defendant are admissible . . . as proof of fact of the aggressor," but holding inadmissible evidence of threats by victim against his dog and former girlfriend): MAI-CR 2.41.1.

⁴¹ 816 S.W.2d 212, 216 (Mo. banc 1991).

⁴² State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991); see also State v. Harden, 823 S.W.2d 87, 89 (Mo. App. E.D. 1991).

⁴³ 12 S.W.3d 307 (Mo. banc 2000).

⁴⁴ Oates, 12 S.W.3d at 312-13.

⁴⁵ State v. Bounds, 305 S.W.2d 487, 490-91 (Mo. 1957) ("evidence of threats was admissible upon the issues of who was the aggressor and the reasonableness of Raymond's [the defendant's] apprehension of danger in the circumstances."); see also State v. Hafeli, 715 S.W.2d 524, 530 (Mo. App. E.D. 1986) (stating that "[e]vidence of prior threats . . . are admissible and serve a duplicate role as proof of fact of the reasonableness of defendant's apprehension at the time he resorts to physical force for defense," but holding inadmissible evidence of victim's threats against his dog and former girlfriend); State v. Hendrix, 699 S.W.2d 779, 781-82 (Mo. App. S.D. 1985). (Statements made to defendant by victim just before defendant shot victim were not hearsay and should have been admitted).

⁴⁶ See MAI-CR2d 2.41.1.

⁴⁷ Cf. Bucklew v. State, 38 S.W.3d 395, 401 (Mo. banc 2001) (evidence of defendant's assault on another was not admissible to show propensity but was admissible to show the defendant's motive and intent).

⁴⁸ 715 S.W.2d 524 (Mo. App. E.D. 1986).

⁴⁹ State v. Hafeli, 715 S.W.2d 524, 530 (Mo. App. E.D. 1986) (holding inadmissible evidence of victim's threats against his dog and former girlfriend).

⁵⁰ State v. Hafeli, 715 S.W.2d 524, 530 (Mo. App. E.D. 1986); see also State v. Ivicsics, 604 S.W.2d 773, 781 (Mo. App. E.D. 1980).

⁵¹ 816 S.W.2d 212 (Mo. banc 1991).

⁵² 34 S.W.3d 139 (Mo. banc 2000).

⁵³ Barriner, 34 S.W.3d at 148.

⁵⁴ Id.

⁵⁵ See, e.g., State v. Johns, 34 S.W.3d 93, 111 (Mo. banc 2000) (no error in excluding evidence of murder victim's reputation for violence and fighting when drinking alcohol, where the only evidence was testimony that defendant and victim "`hung out' in the same crowd and drank alcohol together and there was "no evidence to suggest that [defendant] Johns ever witnessed a violent reaction from the victim or heard about the victim's violent behavior toward others."); see also State v. Carroll, 62 S.W. 2d 863, 868 (Mo. 1933) (discussing earlier decisions dealing with this question); State v. Willett, 539 S.W.2d 774, 777 (Mo. App. W.D. 1976).

⁵⁶ State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982) (dicta).

⁵⁷ See Waller, 816 S.W.2d at 214.

⁵⁸ See Waller, 816 S.W.2d at 214 (observing that a single instance may be exceptional and unrepresentative).

⁵⁹ See, e.g., State v. Winston, 655 S.W.2d 602, 603 (Mo. App. E.D. 1983) (state countered evidence that victim had a reputation for being violent when intoxicated with evidence that he had a reputation for being nonviolent when intoxicated); cf. State v. Bolhofner, 82 S.W.2d 894, 898 (Mo. 1935) (evidence of decedent's good reputation for peacefulness and quietude was inadmissible where defendant had not introduced evidence of the victim's violent character).

⁶⁰ See, e.g., State v. Richardson, 364 S.W.2d 552, 555 (Mo. 1963); State v. Page, 577 S.W.2d 177, 178-79 (Mo. App. E.D. 1979).

⁶¹ See, e.g., State v. Winston, 655 S.W.2d 602, 603-04 (Mo. App. E.D. 1983) (rebutting evidence that defendant was violent when intoxicated with evidence of an occasion when victim was intoxicated and yet was not violent).

⁶² Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure, § 5236 (2001 Supp.).

⁶³ See infra, note 17 (citing cases); see also State v. Carroll, 62 S.W.2d 863, 868 (Mo. 1933).

⁶⁴ See, e.g., State v. Oates, 12 S.W.3d 307, 312-13 (Mo. banc 2000); State v. Robinson, 130 S.W.2d 530, 531-32 (Mo. 1939); see also State v. Gilpin, 954 S.W.2d 570, 576 (Mo. App. W. D. 1997) (not stating whether evidence was offered on the issue of first aggressor); State v. Schlup, 785 S.W.2d 796, 800-02 (Mo. App. W.D. 1990) (same).

Effective December 1, 2000 the Federal Rules of Evidence were amended to allow evidence of the defendant's character in response to evidence of the victim's character. See Fed. R. Evi. 404(a)(1) which provides:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a) (2), evidence of the same trait of character of the accused offered by the prosecution.

⁶⁵ See, e.g., State v. Robinson, 130 S.W.2d 530, 531-32 (Mo. 1939); State v. Page, 577 S.W.2d 177, 178-79 (Mo. App. E.D. 1979) (stating rule); see also State v. Gilpin, 954 S.W.2d 570, 576 (Mo. App. W.D. 1997).

⁶⁶ See, e.g., State v. Oates, 12 S.W.3d 307, 312-13 (Mo. banc 2000) (after defendant, on direct, described an incident in which his homicide victim acted violently toward a third person, the state was properly permitted to cross-examine the defendant concerning four prior assaults committed by the defendant that did not result in convictions); State v. Schlup, 785 S.W.2d 796, 800-02 (Mo. App. W.D. 1990); see also State v. Robinson, 130 S.W.2d 530, 531-32 (Mo. 1939) (no abuse of discretion in allowing questions, which went unanswered, about specific instances of defendant's conduct).

⁶⁷ State v. Bolhofner, 82 S.W.2d 894, 898 (Mo. 1935).

⁶⁸ See State v. Page, 577 S.W.2d 177, 178-79 (Mo. App. E.D. 1979).

⁶⁹ See State v. Robinson, 130 S.W.2d 530, 531 (Mo. 1939); cf. Waller, 816 S.W.2d at 215 (noting potential "double standard" if defendant is allowed to introduce evidence of victim's specific acts but the state is barred from doing so). See Fed R. Evid. 404(a)(1). Missouri courts do not appear to have addressed the special situation referenced in Fed R. Evid. 404(a)(2).

⁷⁰ Oates, 12 S.W.3d at 312-13.

⁷¹ See Fed R. Evid. 404(a)(1), Advisory Committee's Note (2000).

⁷² See Davenport v. Silvey, 178 S.W. 168, 171 (Mo. 1915); Mansfield v. Smithie, 615 S.W.2d 649, 654 (Mo. App. W.D. 1981) (per curiam) (noting that in a civil action where self-defense is claimed, evidence of the victim's reputation for violence is admissible to show who initiated the aggression).

⁷³ Id.

⁷⁴ Id.

⁷⁵ State v. Hendrix, 699 S.W.2d 779, 781 n.2 (Mo. App. S.D. 1985) (footnote by Chief Judge Prewitt).

⁷⁶ Id.

⁷⁷ See State v. Waller, 816 S.W.2d 212, 214 (Mo. banc 1991) ("A single act may have been exceptional, unusual and uncharacteristic; an isolated episode does not provide a true picture of the character of a person."); State v. Duncan, 467 S.W.2d 866, 868 (Mo. 1971) ("men who are ordinarily peaceable and law-abiding, on a few occasions in an entire lifetime, may have acted in a rash and turbulent manner.").

⁷⁸ See Waller, 816 S.W.2d at 214 (observing that one objection to the use of evidence of specific instances to prove a defendant's state of mind is the concern that the jury might "consider the victim's character to infer that the victim acted in conformity with former conduct.").

⁷⁹ D. Graham Burnett, A Trial by Jury (1st ed. 2001). The author, who felt the same desire while following the "hockey dads" trial in Massachusetts, has long believed that in criminal cases the state should be allowed to introduce evidence of a defendant's recent involvement in serious crimes, especially where there is a conviction, to show the defendant's propensity to commit the crime charged. At the same time, the author also believes the use of convictions to impeach a criminal defendant should be severely restricted.

⁸⁰ See Waller, 816 S.W.2d at 214 (observing that the raising of collateral issues could result in a lengthy trial, cloud the real issues and confuse the jury).

⁸¹ Waller, 816 S.W.2d at 216.