United States v. Keiser

United States Court of Appeals for the Ninth Circuit · 1995 · Evidence

57 F.3d 847 (9th Cir. 1995)

Updated August 22, 2026

EvidenceSelf-defense jury instructionsCharacter evidenceRule 404(a)(2)Rule 405Fed. R. Evid. 404(a)(2)Fed. R. Evid. 405(a)Fed. R. Evid. 405(b)

Facts

After a drunken, noisy gathering across the street from Keiser's house led to confrontations, Keiser returned home upset and his brother Randy later sat in his pickup truck between the houses. Victor Romero, angry that someone had slapped his sister, approached and began hitting and shoving Randy while Randy remained in the truck, and Keiser testified that he saw one of Romero's companions remove what Keiser thought was a gun from a car and head toward Randy. Keiser then retrieved a rifle and shot toward the people by the truck, hitting Romero and paralyzing him. At trial, Keiser claimed he acted in defense of his brother and also sought to introduce testimony that, during trial, Romero angrily shouted at Randy outside the courtroom, which the district court excluded.

Issue

Did the district court err by giving the Ninth Circuit model self-defense instruction rather than Keiser's proposed instruction emphasizing that a reasonable belief may be mistaken? Did the district court err by excluding testimony about the victim's post-shooting outburst outside the courtroom as evidence of the victim's violent character?

Rule

A district court may refuse a defendant's proposed self-defense instruction if the instruction given adequately covers the defense theory and the proposed wording would unduly emphasize the defendant's version of the facts. Under Rules 404(a)(2) and 405, evidence of a victim's violent character may be relevant to show the victim was the aggressor even if the defendant did not know of that character at the time, but when offered to support self-defense or defense of another it may be proved only by reputation or opinion evidence unless the victim's character is an essential element of the defense; the relevant test is whether proof or failure of proof of the trait would by itself satisfy an element of the defense.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal assault trial in Arizona, Noah Mercer claims he struck Damon Price to protect his cousin during a parking-lot fight in Tucson. Noah offers a witness who would testify that, three months after the fight, Damon flew into a rage at a neighborhood meeting and had to be restrained; Noah did not know about that incident when the fight occurred.

If Noah offers the testimony only to show that Damon was probably the aggressor during the earlier fight, how should the court rule?

Explanation. When offered to show the victim acted in conformity with a violent character and was the aggressor, victim character evidence is relevant even if the defendant did not know of it at the time and even if the conduct occurred later. But because violent character is not an essential element of self-defense or defense of another, Rule 405 limits proof to reputation or opinion evidence, not specific acts.