During pretrial proceedings Friday morning in the trial of Minneapolis police officer Derek Chauvin, Judge Peter Cahill indicated that he would admit some evidence of George Floyd’s prior arrest in May 2019. In that incident, Floyd resisted arrest to some extent and rapidly ingested drugs during or just prior to the arrest to conceal them. This caused his blood pressure to spike, putting him at risk of a heart attack. Floyd’s behavior in the prior incident is somewhat similar to his behavior in the fatal incident a year later. And it certainly paints him in an unflattering light.
Some of the initial response to Judge Cahill’s ruling sounds a predictable note: George Floyd is not on trial. That statement, while true, illuminates nothing. It is common in criminal cases that a defendant’s guilt depends on the words or conduct of the victim. In self-defense cases, a defendant’s guilt depends on whether the victim attacked first. In rape cases, a defendant’s guilt depends on whether the victim consented. In fraud cases, a defendant’s guilt depends on whether the victims were in on it. In all of these situations, evidence of the victim’s behavior is critical, even though the victim is not a party to the proceeding—and is not “on trial.”
That is no less true in excessive force cases. Whether a police officer’s use of force is reasonable and justified depends in large measure on the arrestee’s behavior. And in this case, Floyd’s behavior bears on his cause of death. So necessarily, although George Floyd is not on trial, the jury will have to assess both Chauvin’s behavior and also Floyd’s behavior.
Whether Floyd’s prior arrest should be part of that assessment is complicated. It depends on the character evidence rule.