Federal Rule of Evidence 404(a)(2)(C) and its state counterparts are the one exception to the general “Pandora’s Box” theory regarding the admissibility of propensity character evidence in criminal cases. Under Federal Rule of Evidence 404(a)(2), sometimes dubbed the “mercy rule,” propensity character evidence is generally inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character under Rule 404(a)(2)(A) and/or evidence of the victim’s bad character under Rule 404(a)(2)(B). Choosing to do so, however, opens the proverbial Pandora’s Box because it allows for the prosecution to respond in kind by presenting evidence of the defendant’s bad character and/or the victim’s good character.
This Article argues that the same reasoning that has been used to justify Rule 404(a)(2) as a whole is directly at odds with the authorization given to the prosecution under Rule 404(a)(2)(C) to present evidence of the alleged victim’s peacefulness in a homicide case in which the defendant claims that the victim was in fact the first aggressor but does not attack the victim’s general character for violence. Moreover, Rule 404(a)(2)(C) is antithetical to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Instead, the Rule places a criminal defendant who claims that he acted in self-defense in response to initial aggression by the alleged victim in a no-win situation in which he must open the door to the admission of propensity character evidence or forgo his best and maybe his only defense. Accordingly, Rule 404(a)(2)(C) and state counterparts should be repealed