Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed

48 Pages Posted: 14 Aug 2012 Last revised: 19 Sep 2012

See all articles by Colin Miller

Colin Miller

University of South Carolina School of Law

Date Written: August 13, 2012


In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.

Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.

Keywords: Character Evidence, Homicide, Self-Defense

JEL Classification: K14, K42

Suggested Citation

Miller, Colin, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed (August 13, 2012). North Carolina Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2128873 or http://dx.doi.org/10.2139/ssrn.2128873

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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