All right, here we are.

Lawyer talk off the record, on the air.

We're going to.

We've got a very.

Hold on a second.

All right.

Lawyer talk off the record, on the air.

Check us out.

LawyerTalkPodcast.com here with our resident law student.

Troy had a question for me.

And look, go ask the question and then we'll give our warning.

Everything's been online about Minnesota, and then there's this, A tragic situation with Alex Peretti.

Horrific, right?

I mean, this is like anybody who sees this is going to be is, I don't care what side you're on.

This.

This is awful.

But me being a law student, I start throwing around in my head, I'm like, let's say they're hypothetically is a trial.

And now there's this new video that came out, I think, yesterday about him protesting like a week earlier.

So the deceased was protesting a week earlier.

And what was he.

And there's a video of this.

Yeah.

What was he doing?

And he's getting a confrontation with the cops and he actually kicks one of the headlight tail lights out on the cop car.

They get in a scuffle.

The ice car.

Yeah, the ice car.

It's unmarked, but the lights are on.

It's clearly law enforcement of some type.

They get in a scuffle, they take him to the ground again and everything, and then they end up getting up, letting him go.

And in my head I was like, how could this possibly get into a trial?

How could it stay out of trial?

I was like, would this be something that is admissible?

That's what I started kicking around my head.

Right.

So we're going to get to that question.

But before we do, I mean, it's a great.

Actually, this is a great question.

And it's a question that everybody maybe should be asking in general terms instead of just jumping to conclusions.

Yeah.

Because, you know, on the one side they're going to say, well, this doesn't matter.

On the other side say, look, that guy's violent.

And you know, he.

Do you say he deserved it because he did that?

That's absurd.

Yeah.

So the question becomes what's the question I always ask?

This is an evidentiary analysis, folks.

We're going to get to the law.

We're not talking politics.

We're going to talk about the law.

And this particularly is the law of evidence, the admissibility or inadmissibility of a piece of evidence.

And the piece of evidence here being a week or two before the incident where this man lost his life where the, where he, where the ice people shot him.

This man is on tape kicking in a taillight of a law enforcement vehicle.

Yep.

What's the first question I always ask?

What is the evidence being offered to prove.

Yeah.

What's the purpose of the evidence?

And this is where everybody screws this up.

Because if you can't answer that question, you can't answer the question of whether it's admissible.

You can't just say, here, look at this guy.

Yeah.

Because the most, the most screwed up area of evidence by lawyers, defense lawyers, prosecutors, judges, courts of appeals, I don't care.

Everybody screws this up is character evidence.

This is a prior act.

This is another act by the deceased a week before.

What possibly could the purpose of that be?

Because, you know, on the one hand, you're not allowed to offer evidence simply for the purpose of showing, look, he was violent once here, so he must have been violent once over there.

It's called propensity evidence.

Even if it may, even if in your head you're thinking, that makes logical Sense evidence rule 404A says you can't do that.

You're not allowed to offer evidence to, to prove action and conformity therewith on another occasion.

So you can't say he did it once, he did it twice.

Can't do it.

You can, however, offer other, this type of evidence for other purposes.

So what is a purpose here that you might.

And what are the purposes that are getting kicked around?

Well, I was thinking was, you know, let's say the cop is being prosecuted.

The prosecutor wants to come forward and say, hey, this is a peaceful protester.

He just doesn't do any, like he's never done anything wrong at the protest, all that.

Okay.

This is, this is the open door.

This is like the unwritten open the door exception.

In that situation, the argument would be the prosecutor made this relevant.

Yeah.

So the prosecutor.

If the prosecutor stands up and says, ladies and gentlemen, the jury, this is the most peaceful man you'll ever see.

In fact, here's a picture of him walking in nature.

I've seen that.

Yeah, he's a nurse of him helping people in the medical field.

He's the most peaceful guy you'd ever know.

Well, what they're doing is they're getting sympathy for the victim and they're asking the jury to sort of feel for the victim.

And the defense is going to say, hold on a second.

Look what this peaceful guy was doing two weeks ago.

Yeah.

Unprovoked.

Yeah.

You know, look what he was doing that's hardly peaceful.

So now the defense is offering the evidence to refute the prosecutor's suggestion that this man was peaceful.

But what the defense can't do, I don't think, is offer the evidence in its case in chief to say without an open the door scenario.

Yeah, I don't believe that prior act by this gentleman is going to be relevant to what the police did on that day.

There might be an exception if the same police officers were present or they saw that guy and recognized him and thought, look, he was dangerous before, maybe he's dangerous again.

So that might inform how they respond.

But generally it's a reasonable officer standard and a subjective standard.

So it's a reasonable officer and it doesn't matter.

The same is true.

It would be if the officers were doing something before.

You know, that kind of character evidence may not come in.

So look, these are.

And you know, we're all.

This comes up a lot is character of the victim in a self defense case.

Yeah.

Let's take it out of the police realm and say I was in a bar fight with you and you were just sort of slapping me a little bit.

I pulled out a knife and stabbed you.

Escalated very quickly.

Yeah.

So I used the prosecutor, you unreasonable force.

I stabbed you, I killed you.

I took a knife to a slap fight.

And you know the prosecutor is going to say, well, look, I mean, he went overboard here.

This was not reasonable force necessary to repel the attack that Troy, that Troy made.

And I'm going to say, well, hold on a second.

I've known this jackass for a decade.

He carries a gun in the small of his back.

I've seen him pull out a knife from his boot and it started the same way.

I've watched plenty of bar fights with Troy.

Or I know Troy is a trained martial artist and he's attacking me.

And if I didn't do this, I knew that my life was in danger because of.

I knew Troy.

That's different.

If I didn't know about it, if you were all those things and I didn't know, I'm just a stranger, then it's not admissible.

But it might be admissible to inform my decision on how much force is necessary.

It would not be admissible, generally speaking, because if I didn't know about it, it's not relevant.

Yeah.

So again, look, law students, evidence teachers, courts, prosecutors, defense lawyers, number one question, for what purpose are you offering the evidence?

And if you can't answer that, you can't analyze the question.

All right, lawyer talk off the record on the air until now.