Abstract:
In this Article, I suggest that the 2000 amendment to Rule
404(a)(1) did not go far enough in enhancing the jury’s ability to
determine the probable first aggressor in a homicide or assault
case. I propose a further amendment to Rule 404 that does two
things: (1) permits the defendant to introduce evidence of the
alleged victim’s relevant, specific acts of violence to demonstrate
the probability that the defendant was the first aggressor; and (2)
permits the prosecution to reply in kind, subject to a specific
balancing test and the defendant’s constitutional right to present
a defense. Regardless of whether the Advisory Committee
adopts my proposed amendment, other American jurisdictions
should consider amending their character evidence rules to
enhance the fact-finding function of the jury in self-defense cases. Part I of this Article examines the defense of self-defense, the
nexus between self-defense and character evidence, and the
historical development of the self-defense-related character
evidence rules, culminating in the 2000 amendment to Rule
404(a)(1). Part II introduces a proposed amendment to Rule
404. Part III suggests a test for evaluating character evidence
rules in self-defense cases and applies this test to several
hypothetical situations, comparing the proposed rule with the
current rules.