concurring:
I write separately from my respected colleague Judge Lumbard because I am troubled by the application in this case of New York’s evidentiary rule.
A state in a criminal case may place restrictions on a defendant’s introduction of evidence without violating the constitutional right to present a defense so long as those restrictions are neither arbitrary, see Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967); see also Chambers v. Mississippi, 410 U.S. 284, 297, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973), nor “disproportionate to the purposes they are designed to serve,” Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987). Accordingly, when a state adopts an evidentiary rule limiting the admission of relevant proof, the test applied to that rule is whether the legitimate interests advanced by the state outweigh the defendant’s right to introduce exculpatory evidence. I concur with the majority that the New York rule at issue before us, which permits evidence of a murder victim’s prior violent acts only if the defendant had knowledge of those acts at the time of the homicide, see People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841 (1976), passes this constitutional balancing test. Yet, a stated rule may be generally constitutional and still be unjust when applied to a given case. Such is the fact here.
It is helpful to recapitulate briefly the facts and circumstances underlying this appeal. The defendant, Rhonda Williams, conceded that she killed John Neal Bennett on July 9, 1986 in a Queens, New York parking lot. But she asserted an affirmative defense of justification, explaining that the fight between them that resulted in Bennett’s death began when he attacked and attempted to rape her in a drug-induced rage. There was some evidence of cuts to her hand and other minor abrasions to her body that lent credence to her assertion that she had struggled to wrest Bennett’s knife away from him. Significantly, Williams sought to support her-defense by introducing testimony that the deceased had committed a similar drug-induced attack at knife-point and actually raped another woman, Doe, in the same area of Queens a few months prior to his claimed attack on her. The New York State trial court barred such testimony because defendant Williams admittedly was not aware of Bennett’s attack on Doe when she killed him.
The purpose of New York’s rule is to admit evidence only insofar as it sheds light on the defendant’s state of mind; that is, the rule permits a defendant to demonstrate the reasonableness of her apprehension of violent behavior by the deceased. Williams sought *1485to introduce victim Doe’s testimony on the separate and distinct issue of whether Bennett was the initial aggressor on July 9, 1986. She insists on appeal that a victim’s character and prior conduct may be quite relevant to determining his behavior at the time of the homicide and thus may support a defendant’s claim of self-defense. See 2 Jack B. Wein-stein & Margaret A. Berger, Weinstein’s Evidence ¶ 404[06] (1992). The question posed “is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief.” 1 John H. Wigmore, Wigmore on Evidence § 63 (3d ed. 1940).
Most states and the Federal Rules of Evidence have recognized this distinction and, as a consequence, would have considered admitting Doe’s testimony, subject to the general rules of exclusion and trial court discretion. See In re Robert S., 52 N.Y.2d 1046, 1049, 438 N.Y.S.2d 509, 420 N.E.2d 390 (1981) (Fuchsberg, J. dissenting); see also United States v. Burks, 470 F.2d 432, 435 & n. 4 (D.C.Cir.1972) (Skelly Wright, J.). The New York rule, which completely ignores the relevance of prior acts of violence in the present circumstances, is now the much criticized minority view.
For essentially the reasons offered by Judge Lumbard, I am not persuaded that New York’s rule is so disproportionate to the state’s legitimate interests as to transgress constitutional limits in this case. Cf. LaGasse v. Vestal, 671 F.2d 668, 669 (1st Cir.) (involving a challenge to a similar Maine rule of evidence), cert. denied, 457 U.S. 1122, 102 S.Ct. 2939, 73 L.Ed.2d 1337 (1984). Yet, New York may want to reconsider its restrictive rule that not only, like sand thrown in the face of the wind, bucks the more enlightened modern trend, but also fails to recognize that the truth of whether a defendant is guilty or innocent is more likely to emerge by hearing the testimony of those possessing relevant facts, leaving the weight of such evidence to be determined, under proper instructions, by a jury. See Rosen v. United States, 245 U.S. 467, 471, 38 S.Ct. 148, 150, 62 L.Ed. 406 (1918).
The Supreme Court gives a principled rationale for a more flexible posture, one assuring fairness to a defendant in those cases that should be excepted from the rule. It teaehes that a state’s legitimate interest in barring certain proof, imposed without exception, may pass constitutional muster. But such a rule does not always justify the exclusion of all proof that might be proffered under it. The state’s legitimate policy of excluding proof that it deems a wrong reason for acquittal should not be a blanket rule of exclusion for evidence that may be found reliable in an individual case. See Rock v. Arkansas, 483 U.S. at 61, 107 S.Ct. at 2714.
New York has not looked at how its rule applies to an objective occurrence but only narrowly as a matter of defendant’s subjective knowledge. However, because New York’s rule is constitutional I am constrained to concur with the majority in affirming the denial of the petition for a writ of habeas corpus.