Appellate Court of Illinois Finds Rule 405(b)(2) Covers the Victim’s Violent Acts Committed Prior to Trial

Federal Rule of Evidence 405(b) states the following:

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Meanwhile, Illinois Rule of Evidence 405(b) is broader. It states the following:

(b) Specific Instances of Conduct.

(1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct; and

(2) In criminal homicide or battery cases when the accused raises the theory of selfdefense and there is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made of specific instances of the alleged victim’s prior violent conduct.

As the juxtaposition of these rules makes clear, the victim’s character for violence is not an essential element of a self-defense claim (because an otherwise violent victim could be peaceful at the time of the crime charged and an otherwise peaceful victim could be violent at the time of the crime charged). This is why the Illinois version of the rule, which I helped draft contains subsection (2). That subsection can be seen in action in the recent opinion of the Appellate Court of Illinois, First District, in People v. Degrave, 2023 WL 4280716 (Ill.App. 2023).

Degrave involved a criminal defendant claiming self-defense who was presented from presenting evidence of violent acts by the victim. On appeal, both parties agreed that Rule 405(b)(2) allows for the admission of prior violent acts by the victim is claiming self-defense. The dispute between the parties was what is meant by “prior violent acts” in Rule 405(b). Are those acts prior to the crime charged or prior to the trial?

The Degrave court noted that Illinois “courts are split on the issue.” After going through prior precedent, the court then concluded that Rule 405(b) covers evidence of the victim’s violent conduct committed any time before the trial, finding, inter alia, that

Though the victim’s “aggressive and violent character”…is typically demonstrated by acts—specific instances of violent conduct—we should not lose sight of the fact that we are talking about character evidence. A propensity for aggressiveness or violence is a character trait. One’s character is revealed by one’s actions, but there is no particular reason why that person’s character would be revealed more or less, depending on whether the acts revealing this character took place before or after the charged incident.

Take a simple example. Individual A is accused of stealing from the petty cash fund at work on January 10. Suppose we have evidence that he was caught stealing from the petty cash fund a week later, on January 17. Does that January 17 theft tend to suggest a character trait—that Individual A has a propensity to steal—that makes it more likely that he did so on January 10, as well? Of course it does. It is the fact that Individual A stole on another occasion, not whether that particular occasion took place before or after January 10, that matters.

True, the law generally does not allow this character evidence for propensity—it would not in the above example—but in those rare instances where such character evidence to prove propensity is allowed, such as in Rule 405(b)(2) regarding domestic-battery cases, it should not matter whether those illustrative acts took place before or after the events giving rise to the current charge.

-CM