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
Behan, Christopher W.
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.