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Prior misconduct negates self-defense claim

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Evidence of a defendant's prior alleged domestic violence incidents against his ex-wife shouldn't have been admitted to explain the ex-wife's animosity toward him, the Indiana Court of Appeals concluded today. However, the evidence was admissible because it was relevant to prove the ex-husband's motive to commit the domestic violence he was charged with in the instant case.

In Christopher R. Embry v. State of Indiana, No. 30A04-0906-CR-346, Christopher Embry challenged the admittance of five prior incidents of domestic violence he allegedly committed against his ex-wife, Miki. Embry was charged with Class D felony domestic battery in the instant case after he and Miki got into a physical altercation at her house in which he pushed her to the ground and hit her. Embry claimed he was acting in self-defense. The trial court initially granted Embry's motion that the previous incidents were inadmissible under Indiana Evidence Rules 404(b) and 403.

While on the stand, the defense counsel asked Miki about derogatory comments she had written about Embry on her blog. Based on her testimony, the trial court found Embry had opened the door to allow evidence of the prior incidents and allowed the state to question Miki about them. Embry was found guilty.

The state claimed the evidence of his prior acts of violence was admissible either to rehabilitate Miki's credibility or to prove Embry's motive for committing the crime. The appellate court rejected the state's first argument. Some jurisdictions have held that if the defense elicits a bias on the part of a state's witness, the state can respond by introducing the defendant's prior uncharged misconduct to explain the witness' antipathy. The judges decided not to adopt that view. Instead, they believed the use of uncharged misconduct in this manner belies the rules and purposes of witness rehabilitation.

"Offering the defendant's prior bad acts to explain a witness's animosity only reinforces - rather than disproves - the witness's disposition. Introduction of the defendant's uncharged misconduct thus violates the rule of logical refutation and has no rehabilitative value," wrote Judge Nancy Vaidik.

However, that evidence was relevant to show Embry's motive to commit the domestic battery charge. If a defendant claims self-defense and he advances a claim of particular contrary intent, it allows the state to be able to use his prior misconduct to disprove the victim was the first aggressor, the judge wrote.

"Embry's prior acts of violence against Miki evidenced his hostility toward her, which in turn was admissible to demonstrate his motive for a violent attack, which made more probable the conclusion that he assaulted her and instigated the entire physical confrontation," she wrote.

Although there was a danger of prejudice given the number of prior bad acts mentioned, the trial court gave a limiting instruction and admonished the jury that the evidence wasn't admitted to demonstrate character or prove action in conformity therewith, so there was no error in admitting the evidence.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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