Blackness as Character Evidence

Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim’s character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant. Similarly, if the government offers evidence of a homicide victim’s character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim’s bad character evidence