Trayvon Martin's background

[TalkLeft]

Yes, Britton is still good law. I don't know why you call it a "back door." It's provided for by the evidence rules and case law, which was my point: in self-defense cases, it is not necessary for the accused to have previously known the victim in order to introduce evidence about the victim to show he was the aggressor. The front door is wide open in this regard.

It's because the issue doesn't go to state of mind (whether GZ was reasonably in fear) but to the victim's actions and whether he was the aggressor.

The Florida Evidence Manual:

Section 90.404(1)(b) allows evidence of a pertinent trait of character of the victim of a crime to be offered by an accused; or by the prosecution to rebut the trait; or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

Dwyer v. State, 743 So. 2d 46, 48 (Fla. Dist. Ct. App. 5th Dist. 1999)

Generally, evidence of a victim's character is inadmissible, but a defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992); see also Ehrhardt, Florida Evidence § 404.6 (1999 ed.); Graham, Handbook of Florida Evidence § 404.1 (1987).

A defendant's prior knowledge of the victim's reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant's state of mind. Ehrhardt. Accordingly, evidence of one of the victim's reputation for violence was not prohibited by Dwyer's lack of prior knowledge of that victim's character traits. 

 Smith v. State, 606 So. 2d 641, 642-643 (Fla. Dist. Ct. App. 1st Dist. 1992)

Florida permits a defendant in a criminal case to introduce evidence of the violent reputation or character of a victim providing there is a showing of self defense on the part of the defendant. Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975). One legitimate basis for the admission of such evidence is for the purpose of showing that the victim was the first aggressor. Fine v. State, 70 Fla. 412, 70 So. 379 (1915). When a defendant offers evidence for this purpose, it is unnecessary for him to show that he had prior knowledge of the victim's propensities. Banks v. State, 351 So.2d 1071 (Fla. 4th DCA 1977). Pino v. Koelber, 389 So. 2d 1191, 1194 (Fla. Dist. Ct. App. 2d Dist. 1980)

Whether the defense will be allowed to introduce the evidence it discovers depends on the nature of the evidence. Obviously, until the defense knows what information exists, if any, it's impossible to say whether it's admissible. But it is discoverable .

The state filed a response today to the defense subpoenas for school records and did not object per se. It says character evidence as to Trayvon  is inadmissible and cites the jury instruction and the entire chapter 776.   See Paragraph 10.

The state says anything TM did before the day of the shooting is irrelevant and inadmissible and says they didn't know each other beforehand.  The state ignores that such information could come in for the purpose of showing he was the aggressor -- just not to show Zimmerman was reasonably afraid of TM.

Which brings us back to why the school and other records are discoverable and O'Mara was right to subpoena them. They could contain information  that would support GZ;s defense that TM was the aggressor.

[MJW]

Yes, Britton is still good law. I don't know why you call it a "back door." It's provided for by the evidence rules and case law, which was my point: in self-defense cases, it is not necessary for the accused to have previously known the victim in order to introduce evidence about the victim to show he was the aggressor. The front door is wide open in this regard.

It's a backdoor because specific acts of violence by the victim that aren't known by the defendant are inadmissible to prove a propensity for violence. Cross examination about the the specific acts is allowed on the premise that the purpose isn't to prove the victim's propensity for violence, but instead, to evaluate the character witnesses' basis for their opinions.

As the court said in Cornelius v. State, 49 So. 2d 332 (Fla. 1950):

We hold that a witness who has testified as to general reputation or character may on cross examination be interrogated as to whether he had ever known or heard of specific acts of violence committed by the accused because the true purpose of such cross examination is to enlighten the jury as to whether the witness actually — as a matter of fact — knows the general reputation of the defendant and to place the jury in a better position to pass upon the credibility of the witness' testimony.

I refer it as a backdoor because it allows normally inadmissible evidence to be introduced, ostensibly for another purpose, even though the jury will likely consider it as evidence of a propensity for violence. You're welcome to disagree with that characterization, though I suspect most people would agree with me.

Regarding your cites:

Dwyer v. State was about reputation evidence, not about specific acts. As I said in my initial comment, " the general reputation of the victim within his community is admissible to establish a propensity for violence."

Smith v. State was about specific acts known by the defendant. As I said in my initial comment, "specific acts by the victim aren't generally admissible unless the defendant was aware of them."

Though I already quoted this section from Smith, I'll quote it again to make the make the point of both Dwyer and Smith clear:

In Florida, evidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self-defense. Garner v. State, 28 Fla. 113, 136, 9 So. 835, 841 (1891). Thus, when self-defense is raised, evidence of the victim's reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant's apprehension at the time of the incident. Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984) (reversing first-degree murder conviction, because defendant erroneously precluded from offering reputation and specific-act evidence relative to self-defense claim). See also Hager v. State, 439 So.2d 996, 997 (Fla. 4th DCA 1983); Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977); Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla. 1971); §§ 90.404 & .405, Fla. Stat. (Supp. 1990 & 1989); Charles W. Ehrhardt, Florida Evidence § 404.6 (1992 ed.). If reputation evidence is offered to show the victim's conduct, the defendant's prior knowledge of the victim's reputation is not necessary. Banks, 351 So.2d at 1072. If, however, character evidence is offered to prove the reasonableness of the defendant's apprehension, prior knowledge of the specific-act violence is necessary. Id.

In that paragraph, the court makes exactly the point I made in my original comment:

In Florida self-defense cases, specific acts by the victim aren't generally admissible unless the defendant was aware of them. Only the general reputation of the victim within his community is admissible to establish a propensity for violence.

[MJW]

Consider also Munoz v. State, 45 So. 3d 954 (Fla. 3d DCA 2010):

Once the proper foundation is laid, the defendant may introduce evidence of the victim's reputation or of specific instances of the victim's conduct. See § 90.405, Fla. Stat. (2009). There are, however, important distinctions and evidentiary requirements between reputation evidence and evidence of specific acts admitted under section 90.404(1)(b). Grace v. State, 832 So.2d 224, 226 (Fla. 2d DCA 2002); Pino, 389 So.2d at 1194.

The purpose of introducing the reputation evidence in a self-defense case is to show that the victim was the initial aggressor. Pino, 389 So.2d at 1194. Reputation evidence is offered to show that the victim acted in conformity with a known character trait. Because reputation evidence relates to the conduct of the victim, the defendant is not required to have had prior knowledge of the victim's reputation in the community. See Dwyer v. State, 743 So.2d 46, 48 (Fla. 5th DCA 1999) (holding that "a defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. A defendant's prior knowledge of the victim's reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant's state of mind.") (citations omitted); Melvin v. State, 592 So.2d 356, 357 (Fla. 4th DCA 1992) (concluding that the trial court erred by excluding testimony that the victim had a reputation as a bully because there was no showing that the defendant had knowledge of the victim's reputation); Marcum v. State, 341 So.2d 815, 817 (Fla. 2d DCA 1977) (holding that where an issue is the identity of the initial aggressor, it is irrelevant whether the defendant was aware of his adversary's reputation).

Conversely, the purpose of specific acts evidence in a self-defense case is to demonstrate the reasonableness of the defendant's fear at the time of the incident. State v. Smith, 573 So.2d 306 (Fla.1990); Sanchez, 445 So.2d at 2; Reddick v. State, 443 So.2d 482 (Fla. 2d DCA 1984); Marcum, 341 So.2d at 817. Because the defendant's state of mind is at issue, before the defendant may introduce specific acts allegedly committed by the victim, he must show that he had prior knowledge of these acts. Pino, 389 So.2d at 1194; Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971).