An Interview with James Fleming

Jim Headshot Only MMSDI

by Gila Hayes

Introduction: Court admissible evidence has taken center stage in many of this publication’s Attorney Question columns. One question not addressed in print often comes up during quieter, personal inquiries by members and candidates for membership who wonder to what extent incidents from the past may affect the chances of being acquitted of murder or manslaughter charges if one who has lived a clean life in recent years has to use deadly force in self defense.

With Network Advisory Board James Fleming’s 30-year career as a criminal defense attorney, it was natural to turn to him with questions about the lingering issue of past bad acts and the related question of admissibility of character evidence to suggest an armed citizen is guilty of a crime of violence. We switch now to our familiar Q & A format, and ask Fleming to address this complex topic.

eJournal: Some of today’s best citizens have turned their lives around but have histories of past illegal violence. Is there a time line after which one’s past isn’t considered relevant to whether current acts constitute a violent crime or self defense?

Fleming: Gila, this is a very difficult question to answer accurately, because the rules vary so much from state to state, and in the Federal courts. Under the Federal Rules of Evidence, for example, a conviction that is over ten years old can only be used under certain limited circumstances, and an analysis must be done to determine whether the probative value of the evidence substantially outweighs its prejudicial effect.

This is also true in some states, such as my home state of Minnesota. In other jurisdictions that I have reviewed, such as California and Florida, this rule does not appear to apply. So, obviously, it is going to be the task of the defense attorney involved to know, not only the applicable rules of evidence, but to also have a very thorough understanding of the client’s existing criminal history.

eJournal: Jim, in talking with you and researching this subject, you have also used the term “character evidence” and talked about its admissibility. Can you tell us what is and how (if at all!) character evidence is presented when a District Attorney or Prosecutor argues that self defense was assault, manslaughter or murder?

Fleming: Well, Gila, when we use it in the legal context, “character evidence” is a term found in the law of evidence to describe testimony or documents offered by a party for the purpose of proving that a person acted in a particular way on a particular occasion, based on the character or disposition of that person.

Character evidence is specifically addressed in Rule 404 of the Rules of Evidence, both in the Federal Rules of Evidence, and in the Rules of Evidence adopted by each of the states. The basic rule states that evidence of a person’s character or of a character trait is not admissible in court to prove that on a particular occasion the person acted in accordance with the character or trait.

It is tricky because you have to distinguish “fixed” behavior from a “tendency” to behave in certain ways. Fixed patterns of behavior are called habits that fall under Rule 406 and are admissible. Character evidence under Rule 404 is evidence of a general tendency to behave in certain ways, which make up and distinguish one person from another. The definition includes both the aggregate of a person’s qualities (a “good” person) and individual traits such as recklessness or violence.

There are exceptions crafted into Rule 404 that apply in criminal cases for both the accused and the alleged victim, as well as for witnesses. For example, the accused is allowed to offer evidence of a pertinent trait of his or her own character. But, if the court allows it, the prosecutor is then allowed to offer evidence to rebut it.

That makes it dangerous for defendants because very few of us live perfect lives and rebuttal evidence used by the prosecutor may really have a negative impact on a jury. That is the biggest reason why its use by the accused is such a gamble for the defense attorney. Very few of us know our clients so intimately that we can know all of the little things they might have done in their past that a prosecutor might find out about and use, to the attorney’s complete surprise.

Another example is that a defendant has a limited ability to use evidence of an alleged victim’s pertinent trait. Those limitations relate to sex offense cases and are found in another Rule of Evidence, specifically Rule 412. If the victim evidence is admitted, the prosecutor again has the right to offer evidence to rebut it; and also (and this is important) to offer evidence of the defendant’s same trait.

In a homicide case, which of course might include self-defense cases, if the accused argues that an alleged victim was the “first aggressor,” the prosecutor is allowed to offer evidence of the alleged victim’s trait of peacefulness to rebut that first aggressor evidence.

eJournal: This seems to cut both ways–both for and against defendants who acted in self defense. You briefed me on the conviction and successful appeal by Harold Fish, the AZ school teacher. Could we review some of what you shared to help explain why sometimes a reputation for violence or peacefulness may be admitted as evidence and not allowed other times? One issue addressed in Mr. Fish’s appeal was the trial court’s exclusion of his attacker’s past violent reactions when people had trouble with his dogs, which was what happened the day he was killed. Since Mr. Fish had not previously met the man he killed, how would that history warrant his use of deadly force?

Fleming: This needs some background, so stick with me. At Fish’s trial, the State filed a motion in limine (a trial motion made by either party to seek admission or exclusion of some type of evidence – they are common in trials, particularly criminal trials) seeking an order from the court to exclude evidence of the victim’s character as to violence and the victim’s prior acts of violence.

Fish’s attorney argued that evidence of specific aggressive acts of the victim, especially when related to his dogs, was admissible under a number of theories under Rule 404(a), including to show the defendant’s justifiable fear of the victim and that the victim was the first aggressor. He also argued that the prior act evidence was admissible under Rule 404(b) to show the victim’s motive and intent in attacking the defendant and defendant’s credibility.

Fish’s attorney provided detailed affidavits from a number of witnesses that showed specific instances of violent confrontation by the victim similar to the conduct Fish claimed he encountered–that when confronted about his dog, the victim became irrationally aggressive and threatening, got a wild look in his eyes and began thrashing the air as if to attack the person he was relating to or physically pushing that person.

The trial court stated that evidence of specific acts of prior aggressive behavior to prove the victim’s conduct on the day of the shooting, while relevant to self defense, was generally inadmissible because it had slight probative value compared to the risk of misuse by the jurors. Moreover, in homicide cases, such specific act evidence was only admissible if a defendant had been aware of such evidence prior to the alleged crime. The court then concluded that the specific act evidence was not relevant to the self-defense claim and on a practical basis could not have influenced Fish’s mind because he was unaware of such acts prior to the shooting.

However, the court held that general reputation or opinion evidence as to the victim’s character for violence was admissible even if not known by Fish prior to the shooting to establish whether the victim or Fish was the first aggressor. The court held that such general evidence would be admitted to help the jury decide issues about the victim’s conduct prior to the shooting and to corroborate Fish’s description of the events. The court also held that such general opinion testimony should be admitted under Rule 403.

eJournal: Nonetheless, Fish was convicted and the ruling in his appeal, I believe, had a big influence on current AZ case law.

Fleming: On appeal, Fish’s attorney argued that under Rule 402(a)(2), evidence of the victim’s specific prior acts of violence and aggression, unknown to Fish at the time of the shooting, should have been admitted to show the victim was the probable first aggressor. The appellate court agreed, but limited this evidence to the victim’s general reputation under Rule 405 because this was not an essential element of the defense of self defense.

When offered to show that the victim was the probable first aggressor, evidence of the victim’s violent or aggressive character is offered to prove conduct in conformity with that character. Such evidence encourages the judge or jury to infer aggressive conduct by the victim in conformity with the victim’s aggressive character. In turn, “the inference that a victim’s conduct conformed to character traits for violence, aggression, or quarrelsomeness may make more probable the defendant’s claims that the victim was the first aggressor,” the appellate court stated.

So, since this evidence was offered to prove an objective fact (that the victim was the first aggressor), not Fish’s subjective state of mind, whether the defendant knew of the victim’s character is irrelevant.

This is important and it is something that many self-defense trainers do not seem to understand. Who gets to determine what the defender’s subjective state of mind was at the time of the use of deadly force? THE JURY AND ONLY THE JURY - So experts coming in to testify that because of this training, or that training, the defendant would have or should have believed “X” is not going to be allowed because it invades the province of the jury, which is the language we commonly see in reported cases from all around the country.

eJournal: If what the attacker had done previously cannot influence the defender’s state of mind, can we, as seems to be implied by the rulings in Fish’s case, ask a jury to consider past violent actions as indications that the person shot did, indeed, attack first? How does this work?

Fleming: Fish attempted to argue that evidence of the victim’s prior violent or aggressive acts should have been admitted to show the reasonableness of his belief that he was in imminent danger of death or serious injury. However, in Arizona, as well as the vast majority of other jurisdictions, courts have ruled that specific act evidence is not admissible to show a defendant’s state of mind unless the defendant was aware of the victim’s prior acts at the time of the altercation.

The appellate court ruled that the specific act evidence was relevant to corroborating Fish’s version of the events leading up to the shooting, but only by balancing it against the possible prejudicial effect the evidence would have on the jury.

eJournal: Now, applying these rules to bad acts by the defendant, not the victim, I’ve often wondered how a prosecutor might show it is more likely than not that someone initiated a fight because in the past, he has been known to be a brawler. How does character evidence work if the defendant, the man or woman who acted in self defense, is the one with the history of past violence?

Fleming: Well, there are any number of cases in which these issues have come up. I think of one from Colorado that gives us the opportunity to see how the issues might be handled by the courts.

In 2009, the Colorado Supreme Court ruled in a case entitled State v. Kaufman, 202 P.3d 542 (Colo. 2009). Kaufman had been earlier convicted of first-degree murder, attempted second-degree murder, and a crime of violence. He was sentenced to incarceration for life without parole plus twenty years.

I think a look at some of the character evidence issues involved in that case and how they were handled will help answer your questions.

The charges stemmed from a fight in Denver back in May of 2003 between two groups of people: Kaufman, his girlfriend and another friend, and two males–Kettle and Walko, one of whom died of stab wounds to his liver and a puncture to his heart The other suffered stab wounds to his chest and hand.

Kaufman had pleaded not guilty, raising the affirmative defense of self defense. In his appeal, Kaufman raised a number of issues, including the trial court’s admission of “other act,” or “character evidence” together with Kaufman’s ownership of brass knuckles, a machete, and eight knives his training in the use of bayonets and defense against the use of knives, training in martial arts, training in self-defense law, possession of reading materials on martial arts and the use of knives and his alleged involvement in two prior bar fights.

At trial, the prosecutor wanted to offer evidence that Kaufman was known by his friends to “always” carry a knife on his person, that he was “fluent in martial arts” (an odd choice of words), that he took classes in martial arts and had taken a knife class; and that he possessed numerous reading materials about martial arts and knives. The prosecution argued that such evidence was admissible as res gestae.

eJournal: Oh, boy, a new term. Meaning what?

Fleming: That is a term meaning the overall start-to-end sequence of the charged crime. The prosecutor argued that this evidence, that would otherwise be nothing more than character evidence, was part of the evidence of the crime. The prosecutor also argued that it was admissible under Rule of Evidence 404(b), but the notice they served on the defense did not list a specific purpose in support of CRE 404(b) admissibility, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. They just sort of threw it at the wall to see if it might stick.

Kaufman’s attorney objected to the admission of evidence on these points, arguing, among other things, that the unfair prejudice would outweigh any minimal relevance and that this was merely an attempt to show actions in conformity with a claim of bad character.

The trial court ruled that the evidence was not admissible as res gestae. Some state courts in other jurisdictions might well allow this, however. It did admit evidence that Kaufman always carried a knife, finding that such evidence was logically relevant for the purpose of identifying Kaufman as the assailant who stabbed the victims.

eJournal: Wait just a minute! He did not deny stabbing the two men; I thought only his justification for doing that was in dispute.

Fleming: Kaufman conceded to stabbing Kettle and Walko; he presented a theory of self-defense, thus negating any challenge to identity. The evidence therefore could not have been independently relevant to the case for that purpose.

In addition, the court ruled that evidence that Kaufman was, as the prosecutor had oddly put it, “fluent in martial arts” was not relevant, and thus was inadmissible. Evidence of specific training in knife combat, however, would be allowed because it was “relevant on the issue of whether the assailant intentionally maneuvered the knife to inflict extraordinary and grievous injury to the victim.” The court of appeals found no abuse of discretion in the trial court’s ruling to admit evidence of knife training.

Now, at this point, I want to emphasize that it is precisely this type of reasoning by the court that makes me extremely leery of seeing evidence of self-defense training admitted during trial.

Everybody wants to be on that bandwagon, I hear it all the time. People get mad or disgusted at me when I suggest training is probably not going to be admitted for the purposes for which people want it admitted. The vast majority of them have never conducted a jury trial and had something like this explode in their faces.

The Colorado Supreme Court ruled that such evidence “was relevant to show Kaufman’s familiarity with knives and ability to manipulate them,” even though the evidence did not indicate that the victim had been stabbed in any unusual manner which was indicative of martial arts training. They reasoned that the prejudicial effect of the evidence did not outweigh its probative value because it was not presented in an inflammatory way, there was no indication that the defendant had ever used the skills to harm anyone so the evidence of Kaufman’s training in knives was properly admitted.

Okay, so now substitute “guns” for “knives” and think about the implications of that. I’ve often heard, “I want my training records admitted into evidence! I want my shooting scores and IDPA scores and records all admitted into evidence!” If I am your trial attorney, I sure as heck don’t and this is exactly why. It is important to understand that in a trial, when evidence comes in, everybody gets to use it, and for whatever purpose they can make of it!

eJournal: If you choose to discuss training, is every gun class you’ve taken open for scrutiny? At which point does it become ridiculous to suggest that something you may have mostly forgotten influenced what you did?

Fleming: At trial, it was the defense that objected to testimony by Kaufman’s self-defense instructor concerning self-defense law in Colorado and the means by which such information might have been communicated to Kaufman when he was a student in the self-defense class. The prosecution wanted to introduce such evidence to show Kaufman’s state of mind and awareness of self-defense law.

The court found a significant risk to the integrity of the jury instructions if the instructor was permitted to testify as to the law on self defense. As a result, the court allowed the instructor solely to testify that self-defense law was part of the class, but excluded any testimony as to the substance of that information. The instructor’s testimony was consistent with this ruling.

Then on cross-examination, Kaufman testified that during the self-defense class, he was instructed as to when the use of deadly force was appropriate and when it was permissible to use force to defend himself or others. However, Kaufman was forced to admit as a result of the thorough questioning by the prosecutor, that his memory was vague as to the specifics of the course material.

On review, the court of appeals stated, “We perceive no particular relevance in the fact that defendant took a self-defense class and learned the law of self defense.” The Supreme Court ruled that evidence that Kaufman took a self-defense class and learned about the law of self defense was irrelevant to the case at hand.

Relevant evidence is defined as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The court reasoned that because the evidence of self-defense legal training does not tend to make any of the material facts in this case more or less probable, it should not have been admitted.

The trial court did exclude evidence that Kaufman had in his possession general martial arts information and knife information. The court reasoned that such information could only be relevant if it specifically related to one of the permissible uses as outlined by CRE 404(b). For example, if Kaufman possessed information regarding the particular type of knife used in the altercation and its design features, such evidence might be relevant as to identity or intent.

eJournal: At the beginning, we talked about good guys who have bad acts in their background. It sounds like they hit Kaufman pretty hard about training, but I thought the bar fights would have been a bigger problem.

Fleming: Kaufman did challenge the admission of evidence regarding his alleged involvement in two prior bar fights. The Supreme Court ruled that the two alleged fights were entirely unrelated to the facts of this case. The evidence served no purpose but to paint Kaufman as an individual with a proclivity to fight, particularly in light of the substantial quantity of other act evidence already admitted. The court held that evidence of Kaufman’s alleged involvement in two prior bar fights should not be admitted at re-trial.

To sum it all up, the Colorado Supreme Court held that some of the other act evidence was improperly admitted under CRE 404(b), prejudicing the defense by painting a picture of Kaufman as an evil individual and allowing the jury to draw impermissible inferences of action in conformity with that nature.

I think the most valuable lesson to take away from this is that the Rules of Evidence can create a vast difference between the way that the average citizen thinks a self-defense case is going to proceed at trial and the reality of the situation. Many other trial courts have confronted very similar situations and arguments. Some of them have ruled consistently with the decision of the Colorado court. Some of them have not.

eJournal: It’s disturbing that long-past details of the armed citizens’ life are up for examination when indicting or acquitting him or her, not just the actions that are the basis for the crime charged. However, you’ve explained that getting evidence admitted or excluded at a trial is significantly more complex.

Fleming: As we have been discussing there are a number of ways in which the details of an armed citizen’s life might become admissible in a trial. We have talked about Evidence Rule 404(b), which allows evidence to be admitted for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We also know that if the defendant seeks to establish his reputation in the community for good character, that the prosecutor has the right to rebut that, if he can. But, in addition to all of this, there are rules of impeachment that might apply as well.

Impeachment, or the process of challenging the credibility of a witness can be done in a number of ways. This might include proof of prior inconsistent statements made outside of court, evidence of prejudice or bias, bad character, or a prior criminal conviction.

So, as you can easily imagine, details of a defendant’s prior life may show up in the hands of a prosecutor who is willing to use them in the event that the defendant elects to give up his constitutional right to remain silent during the trial and testify in his/her own behalf.

eJournal: How might that play out?

Fleming: Imagine that “Tom” has used deadly force in self defense. Now, Tom wants to get up on the stand and tell the good jurors what a good person he is, how much self-defense training he has had, and how he had to shoot because he was afraid for his life. The problem is, back when Tom was in high school, he got caught having sex with his girlfriend after a football game. And Tom got charged with statutory rape, or criminal sexual conduct as it is often known these days. The prosecutor is going to find out about that during a routine records check and so you know he is just waiting for Tom to take the stand.

“Wait a minute!” you say, “He was a juvenile! His juvenile record is sealed, that can’t be brought up!” Well, yes it can and is routinely, literally every day in courtrooms across the country. And on the jury hearing Tom’s case, we might have the father of a girl who wound up pregnant in high school because of a guy like Tom. Or a girl who gave up her virginity to a guy like Tom, who then promptly dumped her and told every one at school about her, and she carried the embarrassment of that with her every day for years. Or a mother who had to raise a child out of wedlock because of a guy just like Tom.

Now they have the power to make somebody pay and Tom is a really convenient target. The problem is, if they are out there hiding on our jury, we are not going to know about any of these things until it is too late. Are you scared yet? If not, you ought to be. We trial attorneys are scared every day. These are some of the reasons why.

eJournal: Playing the devil’s advocate, in light of the rules of evidence, why should we be cautious about what we post on social media or comments made around the water cooler?

Fleming: The most practical reason is that these rules are subject to interpretation, applied in many different fact situations, and therefore there is no hard and fast rule as to their application. One judge in a given situation might rule very differently than another judge in another case. People should avoid risks of that sort at all costs.

And, for another very good reason, while at first glance something posted on social media may seem both harmless and inadmissible, if the defense wants to introduce evidence of the defendant’s reputation for peacefulness, the prosecutor is allowed to introduce any evidence that he/she can find to rebut that. That might be something that the defendant had previously posted on social media.

But people might want to argue, “Well, then we just won’t try to introduce evidence of my reputation for peacefulness in any trials I might be involved in.” But your defense attorney, in a given situation in the future that you cannot foresee, might very much want to introduce such evidence, and your reckless comments on social media will tie his hands, making it impossible for him to do that without jeopardizing your defense case. That is really not a good idea.

eJournal: In the months leading up to trial, if disparaging “facts” are aired/printed in news and social media, what recourse, if any, is available to the attorney representing the client in a self-defense case?

Fleming: I have an iron clad practice rule drummed into my head by my mentors, years ago from which I do not deviate. My mentors were very seasoned trial attorneys with decades of experience. I do not try my cases in the press–ever. Of course, other attorneys can and often do engage in that battle with the news media if they choose to do so. I believe it to be a very, very bad idea.

In a recent case of mine, the subject of my client’s shooting of a burglar was thrown about in the news, and on news blog sites and social media sites for months, with literally hundreds of posts, both pro and con. I was repeatedly contacted by reporters for “comments.” I refused, politely, but firmly.

Luckily, the client and his family were very intelligent, highly-disciplined people, and they stayed out of the mess, and took the high ground. Often times people don’t listen to their attorneys, or the attorneys fall to the temptation to join in. Sometimes they simply want the notoriety for marketing purposes. But, once you start down that slippery slope, you cannot climb back out. So, in my opinion, the best recourse is to stay out of it, and try your case in the courtroom, where it counts.

eJournal: Jim, once again, as is often true for when you and I visit, I’m sobered by the unintended consequences of raising a self-justifying point during a trial. You are often the warning voice, the guy waving the red flag, and that is not always a popular role. Thank you for talking about all these possibilities with us during this interview.

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AftermathAttorney and Network Advisory Board member Jim Fleming is an attorney of more than 30 years trial and appellate court experience in MN, NE and has argued both civil and criminal appellate cases in the State appellate courts as well as before the Eighth Circuit Court of Appeals. He is the author of several books: Aftermath: Lessons in Self-Defense and The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege. Jim and his wife Lynne Fleming operate the firearms training school Mid-Minnesota Self-Defense, Inc. where Jim is the lead instructor. Learn more about Fleming and his law practice website at

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