OPTIONAL: Justice of the Peace: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed

Read this article if you're interested in learning more about Rule 404(a)(2)(C).

Professor Miller argues that this rule should be repealed because it the point of the mercy rule is to provide special protections for the criminal defendant, but 404(a)(2)(C) actually harms the defendant because it makes the defendant choose between admitting evidence about the victim's peaceful character or giving up a self-defense claim.

From the article's conclusion:

The main goal of the propensity character evidence proscription is the prevention of jurors convicting a criminal defendant based upon his criminal past rather than his criminal present. In deeming propensity character evidence generally inadmissible, Rule 404 recognizes the danger that jurors will use a party's prior bad acts and his reputation to conclude, "Once a criminal, always a criminal," or, in a homicide case, "Once a murderer, always a murderer." The "mercy rule" strengthens, rather than weakens, these rationales by allowing criminal defendants facing the loss of liberty, and maybe life, as well as the strong resources of the prosecution to either (a) introduce propensity character evidence concerning themselves and their victims, or (b) refrain from presenting such evidence and maintain the propensity character evidence proscription.

Rule 404(a)(2)(C), however, is diametrically opposed to the aims of the propensity character evidence proscription. It vests a singular power in the prosecution's hands that triggers no new power for the criminal defendant. It places criminal defendants in a worse position than their civil counterparts. And finally, it does so in the very type of case in which a criminal defendant has the most at stake and faces the largest deployment of prosecutorial resources. Rule 404(a)(2)(C) thus cannot be defended under the rationales supporting the mercy rule, and it cannot be defended through analogy to any other evidentiary rule or principle. Instead, the Rule violates the general understanding that criminal defendants be treated at least as well as their civil counterparts. As such, Federal Rule of Evidence 404(a)(2)(C) and its state counterparts should be repealed.