“Two Paths for Victim-Violence Evidence”
Clarifying Rule 404(a)(2) & 405(a) in Self-Defense Cases — Commentary on State v. R. Donahue, 2025 MT 144

1. Introduction

In State v. Donahue the Montana Supreme Court revisited a deceptively common trial question: When may a criminal defendant introduce evidence that the victim is violent? Although the subject surfaces in most self-defense prosecutions, doctrinal fuzziness has lingered for years. Donahue, an off-duty DEA agent convicted of assault with a weapon and carrying a concealed weapon while intoxicated, argued that the trial court improperly blocked him from telling the jury that the alleged victim, Marcus Joshlin, bragged to police that he was “a fighter.” The Supreme Court ultimately affirmed Donahue’s conviction, yet used the occasion to disentangle two distinct evidentiary purposes lying in Rule 404(a)(2) and Rule 405 and to warn practitioners to specify which purpose applies.

Beyond evidence law, the opinion addresses (i) exclusion of bias evidence, and (ii) alleged non-compliance with the jury-summons statute (§ 3-15-405, MCA). On each point the Court sided with the State, but its elaboration on victim-character evidence will likely echo far beyond Montana.

2. Summary of the Judgment

• Issue 1 – Victim’s “fighter” statements: Excluding the statements was at worst harmless error. The Court clarifies that reputation/opinion evidence of a victim’s violent character is admissible without defendant’s prior knowledge when offered solely to show the victim was probably the first aggressor, but Donahue failed to show prejudice.
• Issue 2 – Evidence of victim’s unresolved charges: Not preserved for appeal; defendant never secured a definitive trial ruling.
• Issue 3 – Jury-summons procedure: Clerk’s deviations from § 3-15-405 were merely technical and did not undermine randomness or fairness; no new trial warranted.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The opinion strings together a century of Montana and federal authorities to draw a bright line between two uses of violent-character evidence:

1. Reasonableness of Force (defendant’s state of mind)
   • Defendant must have known of the victim’s violent reputation.
   • Cases: Deschon v. State (2008); Branham (2012); Daniels (2011).
2. Identity of the Aggressor (what probably happened)
   • Defendant’s knowledge is irrelevant.
   • Vintage authority: State v. Jones (1914), State v. Logan (1970). • Federal commentators: Graham, Handbook of Fed. Evid. § 404:4; ALR 1 A.L.R.3d 571.

Earlier cases sometimes blurred these strands, causing lawyers and judges alike to talk past each other. Donahue cites Sattler (1998) for admission, but the trial court and the State—tracking the “reasonableness” line—insisted the defendant needed prior knowledge. The Supreme Court corrects the miscommunication and synthesises its precedent, reaffirming Logan/Jones while leaving Deschon et al. undisturbed.

3.2 The Court’s Legal Reasoning

1. Preservation Doctrine. Although Donahue’s briefing was “inartful,” the Court generously finds the point preserved because his pre-trial motion cited the correct rule and precedent (Sattler). This underscores the Montana practice rule that parties may “bolster” a preserved issue with new authority on appeal.
2. Admissibility Framework Clarified.
   • Rule 404(a)(2) allows violent-character evidence of the victim.
   • Rule 405(a) limits the form—“reputation or opinion,” not specific acts. (Unless defendant knew of them and claims state-of-mind.)
   • The two purposes create distinct foundational requirements.
3. Harmless-Error Review. Even assuming the statements should have come in, overwhelming similar evidence (drug use, threats, prior fight) already reached the jury. Therefore, exclusion did not affect substantial rights (Rule 103 MRE).
4. Bias Evidence. For the unresolved charges, the Court invokes Favel (2015): without a definitive ruling on the motion in limine, the issue is unpreserved.
5. Jury-Summons Statute. Using LaMere (2000) and sister-circuit JSSA jurisprudence (Carmichael, 11th Cir.), the Court re-states the “substantial-compliance” test: only deviations that distort randomness or invite discrimination trigger reversal. Allowing online/email responses or deferring jurors for conflicts is at most technical non-compliance.

3.3 Likely Impact on Future Litigation

• Clear roadmap for trial judges. District courts must ask litigants: “Which purpose—state of mind, or aggressor identity—are you pursuing?” Rulings must reference the proper purpose and foundation.
• Defense strategy shifts. Defendants can now confidently proffer reputation/opinion testimony about victim violence even if they learned of it only post-incident, so long as the aggressor issue is live.
• Prosecution rebuttal duty. Under 404(a)(2) the State may counter with peaceful-character evidence, potentially spawning mini-trials on credibility. Expect more nuanced motion-in-limine practice.
• Clarified waiver rules. The re-affirmation of Favel and Hillious reminds counsel to secure explicit rulings or object contemporaneously.
• Jury-selection doctrine. The Court’s alignment with federal JSSA standards signals that Montana will tolerate pragmatic clerk adaptations (online portals, text reminders) absent proof of skewed cross-section.

4. Complex Concepts Simplified

Justifiable Use of Force (JUOF)

Montana’s statutory self-defense—§§ 45-3-102 to 105, MCA—allows force when the defendant reasonably believes it necessary to prevent harm.

Rule 404(a)(2), Montana Rules of Evidence

One of the few exceptions to the general bar on character evidence; lets either side prove the victim’s pertinent trait (e.g., violence, peacefulness).

Rule 405(a) vs. 405(b)

405(a): Character proven by reputation or opinion. 405(b): Specific acts allowed only when character itself is an “essential element” (rare) or when defendant knew the acts and they inform his perception of danger.

Substantial Compliance (jury-selection context)

Not every statutory misstep reverses a conviction; the defendant must show the breach distorted randomness or allowed discriminatory exclusion.

5. Conclusion

State v. Donahue does not invent new law so much as sharpens the lens through which Montana courts view victim-character evidence. By disentangling the “state-of-mind” and “identity-of-aggressor” purposes, the Court equips trial judges with a clearer gatekeeping framework and warns litigants to articulate their evidentiary objectives precisely. This clarification, coupled with reaffirmations of preservation doctrine and substantial-compliance principles, will shape self-defense trials, motion practice, and clerk procedures statewide.

Practitioners should treat the opinion as a cautionary manual: – Align your offer of proof with the correct purpose under Rule 404(a)(2); – Obtain explicit rulings to preserve error; – And, when challenging jury pools, pair statutory objections with concrete evidence of distortion. Failure to do so, as Donahue learned, will leave convictions intact.