Evidence about the “Victim” in Self-Defense Cases – North Carolina Criminal Law (2023)

In self-defense cases, the defendant typically claims that the “victim” was actually the assailant and that the defendant needed to use force to defend himself, family, home, or other interests. Because of this role reversal, the rules of evidence allow the defendant to offer evidence to show that the victim was the assailant or at least that the defendant reasonably believed that the victim intended to do harm. In State v. Bass, ___ N.C. ___, 819 S.E.2d 322 (2018), the North Carolina Supreme Court clarified one form of evidence that a defendant may not offer about the victim in a self-defense case. This post reviews the evidence found impermissible in Bass as well as several types of evidence that remain permissible.


To make a long story short, the defendant, Bass, shot Fogg while the two were in the breezeway of Bass’s apartment complex. He relied on self-defense against the charges of attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. The jury convicted him of assault with a deadly weapon inflicting serious injury.

One issue concerned the jury instructions given by the trial judge. Although the judge instructed the jury on self-defense, he denied Bass’s request for an instruction that he did not have a duty to retreat in a place where he had a “lawful right to be,” as provided in G.S. 14-51.3 on defense of person. The judge reasoned that Bass was not entitled to the instruction because the breezeway was not within the curtilage of Bass’s home. The Court of Appeals reversed and granted a new trial, essentially finding that the statutory language means what it says—a person does not have a duty to retreat in a place where he has a lawful right to be, including a public place. I wrote a previous post about this aspect of the Court of Appeals’ decision. The Supreme Court affirmed, holding that when a defendant is entitled to a self-defense instruction, he “is entitled to a complete self-defense instruction, which includes the relevant stand-your-ground provision.” Slip Op. at 10, 819 S.E.2d at 326 (emphasis in original).

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A second issue concerned the admissibility of testimony about previous violent acts by Fogg.

Williford, Fogg’s ex-girlfriend, would have testified that Fogg had, without provocation and in front of Williford’s three-year-old daughter, pulled a gun on Williford and choked her until she passed out. She also would have testified that Fogg beat her so badly that her eyes were swollen shut and she was left with a bruise reflecting an imprint of Fogg’s shoe on her back. Michael Bauman would have testified that, on one occasion, he witnessed Fogg punch his own dog in the face because it approached another individual for attention. On another occasion, Bauman encountered Fogg at a restaurant, where Fogg initiated a fight with Bauman and also “grabbed” and “threw” Bauman’s mother-in-law when she attempted to defuse the situation. Terry Harris would have testified that Fogg, a complete stranger to him, initiated a verbal altercation with him in a convenience store. Two or three weeks later, Fogg pulled over when he saw Harris walking on the side of the road and hit him until Harris was knocked unconscious. According to Harris, Fogg “[s]plit the side of [his] face” such that he required stitches. Slip Op. at 14–15, 819 S.E.2d at 328.

The trial judge excluded this testimony. The Court of Appeals held that the evidence was admissible in support of Bass’s defense that Fogg was the aggressor on the night Bass shot him. The Court of Appeals also held the trial judge erred in denying the defendant’s motion to continue after the prosecutor learned the night before trial of five additional instances of assaultive behavior by Fogg, which the prosecutor disclosed to defense counsel. The Supreme Court reversed, holding that the testimony offered by the defendant was inadmissible character evidence and that evidence of the additional acts would have been inadmissible for the same reason.

Evidence about the Victim

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Character to show conduct. The rules on character evidence, the subject of the Supreme Court’s opinion, have several precise steps. Please bear with me.

Generally, evidence of a person’s character is not admissible to prove he “acted in conformity therewith on a particular occasion.” N.C. R. Ev. 404(a). In other words, a party may not offer evidence of a person’s past character to show that he committed the current deed. An exception to this general rule allows a defendant in a criminal case to offer evidence of “a pertinent trait of character of the victim.” N.C. R. Ev. 404(a)(2). The Supreme Court in Bass recognized that evidence of a victim’s violent character is pertinent and thus admissible in determining whether the victim was the aggressor in a case in which the defendant claims self-defense. Slip Op. at 13, 819 S.E.2d at 327.

The inquiry does not end there. North Carolina Rule of Evidence 405 specifies the forms of evidence that are permissible to show character, including violent character. Rule 405(a) allows reputation and opinion testimony in “all cases in which evidence of character or a trait of character of a person is admissible.” Thus, a witness who knows the victim can give an opinion that the victim is a violent person. However, Rule 405(b) only allows evidence of specific instances of conduct to show character when “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Thus, a witness can testify that the victim engaged in specific acts of violence only if the victim’s character for violence is an essential element.

Here, the Court of Appeals and Supreme Court disagreed. The Court of Appeals held that whether the defendant or victim was the aggressor is an essential inquiry, or element, of self-defense. Rule 405(b) therefore allowed Bass to present evidence of specific acts of violence by Fogg to show that he had a violent character and therefore was the aggressor. The Supreme Court agreed that whether the defendant or victim was the aggressor is a central inquiry. However, to the Supreme Court, the determinative question under Rule 405(b) is whether the victim’s violent or aggressive character is an essential element, which is a different question than whether the victim was the aggressor in the current incident. The Supreme Court answered no. Accordingly, Fogg’s past acts were not admissible under Rule 405(b) to show that he was the aggressor. Contrary language in another recent Court of Appeals decision, State v. Greenfield, ___ N.C. App. ___, Slip Op. at 6–8 (Dec. 4, 2018), probably does not survive the ruling in Bass.

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But wait, there’s more. Bass does not address or rule out other theories of admissibility of prior violent acts by the victim. These are discussed at greater length in Chapter 7 of my book The Law of Self-Defense in North Carolina (1996), which obviously has aged but still reflects the applicable evidence principles and includes cites to pertinent court decisions.

Known acts to show reasonable fear. If the defendant knows of prior violent acts by the victim, longstanding law in North Carolina recognizes that the defendant may offer evidence about the acts to show why he feared the victim and why his fear was reasonable. See, e.g., State v. Johnson, 270 N.C. 215, 218–20 (1970). The evidence is not subject to the limitations on character evidence because its relevance is to show the defendant’s state of mind and the reasonableness of his apprehension of the victim. The Bass decision, which dealt with prior acts by the victim that were not known by the defendant, does not affect this theory of admissibility. Another recent decision, in which the Court of Appeals relied on this type of evidence to show that the defendant reasonably believed it was necessary to use deadly force, should remain good law. See State v. Irabor, ___ N.C. App. ___, Slip Op. at 7–9 (Nov. 20, 2018).

Threats by the victim. Evidence of threats by the victim against the defendant are admissible under North Carolina law for various reasons. Whether known or unknown by the defendant, such threats show the victim’s intent. The cases treat threatening statements by the victim against the defendant like threats by the defendant against the victim: they are statements of intent tending to show how the person making the threat later acted. Thus, in a self-defense case, threats by the victim against the defendant are relevant to show that the victim was the aggressor. See, e.g., State v. Ransome, 342 N.C. 847 (1996). If the defendant knows of the threats, they are relevant and admissible for the additional reason that they show the defendant’s reasonable apprehension of the victim. See, e.g., State v. Macon, 346 N.C. 109, 114–15 (1997). Again, this evidence is not subject to the limitations on character evidence.

Impeachment. When the rules on character evidence apply, other exceptions allow the defendant to offer evidence of specific acts by the victim. If a witness testifies about the victim’s peaceful character or otherwise opens the door, North Carolina Rule of Evidence 405(a) allows cross-examination into “relevant specific instances of conduct.” For example, if a witness testifies about the victim’s peaceful character (permitted under Evidence Rule 404(a)(2) in some instances), the defendant may impeach the witness through cross-examination about prior violent acts of the victim. See generally State v. Gappins, 320 N.C. 64, 68–70 (1987) (applying this rule to allow State’s cross-examination of defendant’s character witnesses).

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Rule 404(b). North Carolina Rule of Evidence 404(b) creates another exception to the limits on character evidence. It allows evidence of specific crimes, wrongs, or acts “for other purposes,” such as motive, intent, preparation, plan, and absence of mistake. The North Carolina courts have held that Rule 404(b) is a rule of inclusion. See State v. Coffey, 326 N.C. 268, 278–79 (1990). Prior acts, including acts of the victim, are admissible if they are relevant for some purpose other than to show that the person has the propensity, or character, to commit the current act under consideration. See, e.g., State v. Smith, 337 N.C. 658, 664–67 (1994) (holding that prior acts of victim were not admissible under Rule 404(b) in this case). Whether Fogg’s prior acts might have been admissible under Rule 404(b) for a non-character purpose was not considered in Bass.

Potential impact of defensive-force statutes. Another question concerns the impact of the defensive-force statutes enacted by the General Assembly in 2011, which recent cases have recognized depart from prior law in some important respects. Provisions potentially relevant to this discussion include G.S. 14-51.2(d), which establishes a presumption that a person who unlawfully and forcibly enters a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Suppose the State tries to rebut this presumption by offering evidence that the person did not enter with this intent. Would such evidence open the door to further rebuttal by the defendant through evidence of prior acts by the victim?

On their face, this provision and others in the defensive-force statutes do not address evidence law. I wonder, however, whether the expanded rights enacted by the General Assembly could be read as affecting, or at least simplifying, the overall approach to evidence issues in self-defense cases. Although many avenues remain after Bass for the defendant to introduce evidence about the victim’s prior conduct, the road map is complicated and has some unexpected potholes.


Who has the burden of proof in self-defense in North Carolina? ›

3d at 778; Bunn, 667 S.E.2d at 608. In North Carolina, the State has the burden at trial to prove beyond a reasonable doubt that the defendant did not lawfully use defensive force.

Who bears the burden of proof for self-defence? ›

The prosecution must rebut self-defence to the criminal standard of proof. If there is sufficient evidence to prove the offence, and to rebut self defence, the public interest in prosecuting must then be carefully considered.

Is there a self-defense law in North Carolina? ›

Self defense in NC is authorized in instances of unlawful entry into one's home, vehicle, or place of employment. Both Self Defense and the defense are subject to a “reasonableness” standard. The fear of immediate harm to others or to yourself must be reasonable.

What is the burden of proof for defendants using the duress defense? ›

with duress, the defendant only needs to raise a reasonable doubt about the elements of the defense. But the defendant has to prove all of the elements of the necessity defense by a preponderance of the evidence.

What are the 3 burdens of proof? ›

The burden of proof is a legal standard that requires parties to provide evidence to demonstrate that a claim is valid. Three levels of the burden of proof, "beyond a reasonable doubt," a "preponderance of the evidence," and "clear and convincing" determine the level of evidence required for a claim.

What legally constitutes reasonable doubt in the state of North Carolina? ›

And a reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that's been presented or the lack of insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the Defendant's guilt.

What happens if there is not enough evidence? ›

Insufficient evidence usually results in dismissal of the case after the prosecution or the plaintiff has completed his/her introduction of evidence or, if on appeal, reversal of the judgment by the trial court.

What is the standard of proof required in a criminal case? ›

In civil matters, the standard of proof is the balance of probability, whereas in criminal cases, the standard of proof is reasonable doubt.

How do you prove beyond a reasonable doubt? ›

This means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant's guilt in order to render a guilty verdict.

Is NC A Hold your ground state? ›

North Carolina is a “stand your ground” state because of its civil and criminal law protections for those using force to defend themselves under certain circumstances. This includes instances when there's no duty to retreat, so you can “stand your ground” and legally use force.

Is North Carolina a Defend your ground state? ›

North Carolina Is a Stand Your Ground State

Stand your ground laws like those in North Carolina, though, remove a person's duty to retreat. In other words, a person threatened with violence does not have to try to get away before resorting to reasonable, even deadly force (which may be considered reasonable).

Is North Carolina a castle doctrine state? ›

North Carolina falls into the majority of states that employ what is known as the Castle Doctrine. This form of stand-your-ground laws is different from the traditional conceptualization in that the law in North Carolina is more restrictive regarding when a person can defend themselves by using force.

What are the four elements required to prove duress? ›

The elements are:
  • The threat must be of serious bodily harm or death.
  • The harm threatened must be greater than the harm that is caused by the crime.
  • The threat must be immediate and inescapable.
  • The defendant must have become involved in the situation through no fault of his or her own.
13 Jan 2016

Which one of the following defense is not considered a justification defense? ›

The insanity defense refers to a defense that a defendant can plead in a criminal trial. In an insanity defense, the defendant admits the action but asserts a lack of culpability based on mental illness. The insanity defense is classified as an excuse defense, rather than a justification defense.

What are the two elements required for the consent defense? ›

Key Takeaways. Two elements are required for the consent defense: the defendant must consent knowingly (cannot be too young, mentally incompetent, or intoxicated) and voluntarily (cannot be forced, threatened, or tricked).

What is clear and convincing evidence? ›

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true.

What percentage is clear and convincing evidence? ›

Under the clear and convincing standard, the evidence must be substantially greater than a 50% likelihood of being true. In a criminal trial, clear and convincing is less strict than the “Beyond a Reasonable Doubt” standard, which requires that evidence be close to certain of being true.

Where does the burden of proof lie in a criminal case? ›

For example, in criminal cases, the burden of proving the defendant's guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt.

What is a probable cause hearing NC? ›

The purpose of a probable cause hearing is to determine whether probable cause exists to prosecute a defendant, so that the defendant will not be unjustifiably tried. Discovery of the state's evidence is not a purpose of the hearing.

What is NC in legal terms? ›

What is Non-cognizable Offence? The category of offences as per Criminal Procedure Code (CrPC) in which Police can neither register the FIR nor can investigate or effect arrest without the express permission or directions from the court are known as Non-cognizable offences.

How do I file a criminal complaint in North Carolina? ›

There are several ways you can report a crime against you.
  1. Call 911. ...
  2. Call the non-emergency number for your local law enforcement agency.
  3. Go directly to a local law enforcement office.
  4. Go directly to the local magistrate's office.

Are texts enough evidence to convict? ›

Text messaging leaves an electronic record of dialogue that can be entered as evidence in court. Like other forms of written evidence, text messages must be authenticated in order to be admitted (see this article on admissibility by Steve Good).

What is reliable evidence? ›

More Definitions of Reliable Evidence

Reliable Evidence means reports and articles with scientifically valid data published in authoritative, peer reviewed medical and scientific literature.

Can you be found guilty without evidence? ›

Insufficient evidence—if you think that the prosecutor has not proven you committed the crime—and if you are sure the judge or jury don't think you are guilty—then you do not need to present your defence. But if the judge or jury do find you guilty, then you cannot re-open your case.

What are the 5 main types of evidence? ›

The court recognizes these five types of evidence, as discussed in this piece.
  • Real evidence. Real evidence is any material that was used or present in the crime scene at the time of the crime. ...
  • Documentary evidence. ...
  • Demonstrative evidence. ...
  • Testimonial evidence. ...
  • Digital evidence.
10 Jul 2020

What is the highest burden of proof? ›

The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed upon a party at trial, and it is usually the standard used in criminal cases.

What is the test of burden of proof? ›

Section 101 - Burden of proof

A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.

What is substantial evidence? ›

Substantial evidence means that degree of relevant evidence which a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is a lower standard of proof than preponderance of the evidence.

What does the prosecution need to prove in the courtroom? ›

Prosecutors have to show those using witness testimony, physical or scientific evidence, and the defendant's own statements among other resources.

What two things can the defendant show that no crime was committed? ›

Excuse defenses include insanity, diminished capacity, duress, mistake, infancy and entrapment. If a defendant is legally insane at the time he commits the crime, he may be found not guilty by reason of insanity.

Are AK 47 legal in North Carolina? ›

Fully automatic firearms, such as a fully automatic AK-47 (Semi-automatic versions are legal);

Can you open carry a knife in North Carolina? ›

Open carry is lawful for all knives. Concealed carry for any bowie knife, dirk, dagger, or razor is unlawful. It is uncertain whether non-ordinary pocket knives – pocket knives that are not within the statutory definition – are similarly restricted.

Can you keep a rifle in your car NC? ›

In North Carolina, you can keep a firearm in your car UNLESS it is both concealed AND “easily and readily accessible” by an occupant. If it's locked in the trunk, it isn't easily accessible and not against the law.

Is NC a duty to retreat state? ›

North Carolina's “Stand Your Ground” law removes the duty to retreat and generally allows the use of deadly force when in one's home, car or workplace, under reasonable circumstances.

What is considered self-defense? ›

It refers to the use of force to repel an attack or imminent threat of attack directed against oneself or others or a legally protected interest. Self-defense in international law refers to the inherent right of a State to use of force in response to an armed attack.

Can I open carry a pistol in North Carolina? ›

A handgun is concealed in a vehicle if it cannot be readily seen by a person approaching and if it is readily accessible. A handgun under the front seat or in an unlocked glove box or console is illegal. A handgun openly displayed or in a locked glove box, locked console, or in the trunk is lawful.

What self-defense tools are legal in NC? ›

North Carolina laws state that it is legal to carry pepper spray and stun guns for the purposes of self defense. There are some minor restrictions, however, with regard to the size of the pepper spray container. You cannot carry containers of pepper spray that are larger than 5 ounces.

Can you carry a gun without a concealed weapons permit in NC? ›

A concealed carry permit is not required for anyone legally entitled to carry a firearm to carry a handgun on the person's own premises. In order to purchase a handgun in North Carolina, you must have either a North Carolina-issued Concealed Carry Handgun permit (CCH) or a handgun purchase permit.

Do you have to register your gun in NC? ›

A: There is no NC state law that requires you to register your firearms, or notify any public official. One county in NC requires its residents to register handguns – Durham County. This power was granted to Durham County by the State Legislature. No other counties or localities are permitted to require registration.

Can you carry a gun without a concealed weapons permit in NC? ›

A concealed carry permit is not required for anyone legally entitled to carry a firearm to carry a handgun on the person's own premises. In order to purchase a handgun in North Carolina, you must have either a North Carolina-issued Concealed Carry Handgun permit (CCH) or a handgun purchase permit.

Are ak47 legal in NC? ›

Fully automatic firearms, such as a fully automatic AK-47 (Semi-automatic versions are legal);

Can you open carry in a mall in NC? ›

Is Open Carry Legal in North Carolina? Yes, in many instances, open carry is legal without a permit. Most people may openly carry firearms wherever they aren't prohibited. State law restricts open (and concealed) carry in places such as schools, government buildings, parades, picket lines, and demonstrations.

Are AR 15 legal in North Carolina? ›

Automatic rifles and machine guns

NFA weapons such as registered fully automatic firearms, short-barreled shotguns, and suppressors are legal to own by private citizens in North Carolina so long as ATF regulations are followed.

Can you conceal carry in a bar NC? ›

You may not, with or without a permit, carry a concealed weapon while consuming alcohol or while alcohol or any controlled substances are in your blood unless the controlled substance was obtained legally and taken in therapeutically appropriate amounts.


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