We don't agree. Graham's "totality" standard is the standard for determining the reasonableness of a use of force. If you find a judge unwilling to consider the "totality" then you find a trial judge not following the standard set by SCOTUS. Not to say I wouldn't be surprised.
The SCOTUS opinion you cited has nothing to do with the rules of evidence, as I've already stated. It addressed whether reasonable cause existed to use excessive force. The court only addressed the fact that the victim's history could create reasonable cause, but the issue was not raised as to whether the victim's history is admissible. So Graham is, as I've already stated, not applicable to this discussion.
Furthermore, just because evidence exists doesn't mean that it's admissible. A piece of evidence can be part of the "totality" of the situation, but that doesn't mean it's automatically admissible. So while a court has agreed that a cop can and should take into account a victim's history when determining what amount of force to use, and while the victim's history may be viewed as a piece of evidence, not all evidence is admissible. That basic premise does not violate the decision in Graham, nor does it violate any SCOTUS opinion. I've already cited to case law which shows that the victim's history still has to go through the 404(b) and 403 tests, even in use of force determinations.
If what you're claiming were true, then the court would not have gone through those tests. The court would have just said, "According to Graham, the victim's history is part of the 'totality' of the facts and circumstances that the officer has to consider, and thus it's automatically admissible because we are forced to review the 'totality,' as we can not exclude any part of the 'totality.'" Yet they didn't do that, and instead proceeded to walk through the 404(b) and 403 tests...not sure what more you want in order to prove that the rules of evidence still have to be followed, and that those rules of evidence do prohibit admitting the victim's history in some circumstances.
592 Replies
135839 Views