The admissibility of character evidence by defendants in self-defense cases to prove that the victim was the first aggressor varies among jurisdictions. All federal courts allow such evidence, but its admissible form is confined to reputation or opinion evidence. The majority of states also allow some form of victim character evidence in self-defense cases. Among these states, the form in which such evidence is admissible varies considerably, as some states have adopted the Federal Rules of Evidence, others have not, and still others have adopted portions of the federal rules. Two states that have not adopted the Federal Rules of Evidence are Illinois and Massachusetts.
In the recent case of Commonwealth v. Adjutant, the Massachusetts Supreme Judicial Court created a new common-law rule of evidence allowing defendants asserting self-defense claims to offer specific act evidence of past violent acts initiated by the victim and unknown to the defendant at the time of the incident. The court’s approach is unique in its exclusive adoption of specific act evidence and its non-requirement of contemporaneous knowledge. The court’s decision, however, lacked complete instructions to trial courts as to the application of the new rule. Most notably, the court failed to state whether the prosecution is permitted to offer specific act evidence against the defendant if the defendant chooses to offer such evidence against the alleged victim. The court also failed to specify whether admissible prior instances of conduct must be of a certain nature, have resulted in a criminal conviction, or have occurred within a certain period of time with respect to the current indictment. As a result, the dissenting justice exhorted that the majority’s decision will result in unfair prejudice to victims with violent pasts, jury distraction, confusion, delay, and inconsistency within the jurisdiction’s case law. . . .