“Putting the victim on trial”

People often fault the justice system for “putting the victim on trial” in various cases. But often a victim’s (or an alleged victim’s) past behavior is directly relevant to deciding whether there’s proof beyond a reasonable doubt that the defendant is guilty. Here’s an example, from Thursday’s Mississippi Supreme Court opinion in Richardson v. State (Miss. June 26, 2014). The apparently uncontested facts:

Because Rudy Quilon was homeless following his release from prison, Harvill Richardson permitted Quilon to move into his home while he got back on his feet. [Richardson had apparently met Quilon through their church. -EV] Over the next five months, Quilon became increasingly unwelcome as he bragged about having been convicted for murder and armed robbery, his previous experiences as a gang member, and killing a “snitch” in prison. He warned that he could harm those who upset him.

On numerous occasions, Richardson attempted to persuade Quilon to leave the home, but Quilon claimed that he could not leave because he had no transportation or place to go. This prompted Richardson to offer Quilon a car and money for rent, but Quilon refused and repeatedly used threats to coerce Richardson and to remain in the home.

This situation culminated when Quilon, who had begun watching pornography on Richardson’s computer, stated that he wanted to have sex with Richardson’s wife. Richardson ordered Quilon to gather his belongings and leave.

Shortly afterwards, Richardson shot Quilon. Richardson was tried for murder, and was convicted.

Now if Richardson shot Quilon simply because he was angry at Quilon for suggesting that he wanted to have sex with Richardson’s wife, that would be murder — however badly Quilon may have behaved, and however angry Richardson might have felt, that can’t justify killing. But Richardson argued that he shot Quilon only because he reasonably feared that Quilon was about to attack him with a deadly weapon; according to Richardson’s account of the facts,

Quilon refused and walked out to a shed behind the home where Richard kept axes and other tools that could be used as weapons. Richardson then armed himself with a pistol. As Quilon returned from the shed, he approached Richardson in a threatening manner, with one arm concealed behind his back.

Richardson attempted to stop him by warning him not to come any closer, and by firing a warning shot into the ground, but Quilon kept coming toward him, so Richardson shot Quilon in the stomach.

The problem, though, was that — at the prosecutor’s behest — the court refused to allow the defense to tell the jury about Quilon’s criminal history, or about Quilon’s having bragged about his crimes (including his gang history and the killing of the “snitch”). The court concluded that this evidence was largely irrelevant, and in any event was unduly prejudicial. Among other things, the court reasoned, “[W]hether a victim is a good guy or bad guy, it’s irrelevant to the crime. Whether a good man dies or a bad man dies is irrelevant to the charge of the offense.”

Yet the evidence of Quilon’s past bad acts was critical to Richardson’s defense. Though Quilon was apparently not actually armed, Richardson’s shooting would have been in self-defense if he reasonably believed that Quilon was indeed about to attack him in a way that threatened death or serious bodily injury. Thus,

  • Evidence of Quilon’s past crimes helped support Richardson’s version of how Quilon behaved (that Quilon approached him an objectively threatening way).
  • Evidence of what Richardson knew about Quilon’s past violent behavior helped show that Richardson sincerely feared that Quilon had armed himself.
  • And evidence of what Richardson knew about Quilon’s past violent behavior helped show that Richardson’s fear was reasonable.

In Thursday’s decision, the Mississippi Supreme Court concluded — correctly, I think — that the evidence was wrongly excluded.

First, “The State argued that the convictions would be improper impeachment evidence under Mississippi Rule of Evidence 609 because they did not involve an element of dishonesty and were more than ten years old.” But, the Mississippi Supreme Court pointed out, “Rule 609 allows a party, within certain limits, to use a witness‘s prior criminal convictions to impeach the credibility of that witness” (emphasis mine). “Since Quilon was dead, he was not going to be a witness, so Rule 609 had no application whatsoever to his prior bad acts. The trial judge committed error in applying Rule 609.”

Second, “even if the trial court had based his ruling on the law related to use of a victim’s criminal history in self-defense cases” — which involves a different rule — “his ruling still would have been incorrect”:

Although relevant, character evidence — also referred to as prior bad acts — may not be used “for the purpose of proving that [a person] acted in conformity therewith on a particular occasion.” But this rule has several exceptions, one of which is “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused….” Another exception is where the evidence is not offered for character purposes, but rather for some other purpose.” In this case, both exceptions apply.

Rule 404(a)(2) which allows a defendant to admit evidence of a “pertinent trait of character of the victim of the crime” — applies on its face. The character trait at issue — violence — is certainly “pertinent” to Richardson’s claim of self-defense. And Rule 404(b) — which allows character evidence to be introduced for “other purposes” — applies because Richardson clearly and forcefully attempted to use the prior criminal history, not to show propensity, but to show his state of mind, that is, that at the time of the shooting, he feared Quilon, and that his fear was reasonable.

(Three of the nine Justices dissented, on the grounds that the judge’s pretrial rulings didn’t conclusively foreclose the defense from introducing the evidence, but left open the possibility that the evidence could be introduced if Richardson testified, and Richardson ended up not testifying.)

Of course, the prosecution can still retry Richardson, and aim to prove beyond a reasonable doubt that he wasn’t sincerely and reasonably afraid that he was in imminent danger of death or serious bodily injury at Quilon’s hands. But any new jury will know about Quilon’s past, and about what Richardson knew about Quilon’s past. And as a result, it could better evaluate whether there was indeed a reasonable possibility that Richardson was telling the truth — that Quilon was indeed approaching him in a threatening way, despite Richardson’s warnings, and that Richardson sincerely feared that Quilon would kill or seriously injure him — and that Richardson’s fear was objectively reasonable, given what Richardson knew. That does require “putting the victim on trial,” in a manner of speaking. And rightly so.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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