Oregon Law Review : Vol. 86 No. 3, p. 733-796 : When Turnabout Is Fair Play: Character Evidence and Self-Defense in Homicide and Assault Cases
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Date
2007
Authors
Behan, Christopher W.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
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.
Description
64 p.
Keywords
Evidence (Law), Character evidence
Citation
86 Or. L. Rev. 733 (2007)