Character Evidence

Rule

FRE 404(a) — Character Evidence; Crimes or Other Acts (a) Prohibited uses: Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Exceptions to (a)(1) — defendant in a criminal case may offer evidence of their own pertinent character trait; if offered, prosecution may rebut. Exception (a)(2) — victim in a criminal case: defendant may offer evidence of victim’s pertinent character trait; prosecution may rebut; in a homicide case, if defendant claims self-defense, prosecution may offer evidence of victim’s peaceful character. Exception (a)(3) — witnesses: governed by FRE 607–609.

FRE 404(b) — Other Crimes, Wrongs, or Acts Evidence of other crimes, wrongs, or acts:

• Is not admissible to prove character in order to show conforming action
• May be admissible for another purpose: proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (the MIMIC list)

FRE 405 — Methods of Proving Character

• When character evidence is admissible, it may be proved by reputation or opinion testimony
• Specific instances of conduct may be proved only when character is an essential element of a claim or defense (e.g., defamation, negligent entrustment, entrapment)

Elements

A threshold analysis for character evidence:

1. Is this character evidence (offered to show action in conformity with a trait)?
2. If yes: is there an applicable exception under FRE 404(a)(1)–(3) or FRE 413–415?
3. If offered for a non-propensity purpose under FRE 404(b): is there a proper non-propensity purpose (MIMIC)?
4. Is the evidence sufficiently probative of that purpose (FRE 401)?
5. Does probative value substantially outweigh prejudice (FRE 403)? If yes, exclude.
6. Was proper notice given in criminal cases (FRE 404(b)(3))?

Elements

A threshold analysis for character evidence:

1. Is this character evidence (offered to show action in conformity with a trait)?
2. If yes: is there an applicable exception under FRE 404(a)(1)–(3) or FRE 413–415?
3. If offered for a non-propensity purpose under FRE 404(b): is there a proper non-propensity purpose (MIMIC)?
4. Is the evidence sufficiently probative of that purpose (FRE 401)?
5. Does probative value substantially outweigh prejudice (FRE 403)? If yes, exclude.
6. Was proper notice given in criminal cases (FRE 404(b)(3))?

Requirements / Test

FRE 404(b) — Admissibility of other acts

1. The other act must be proved by sufficient evidence that a jury could find it occurred (FRE 104(b); Huddleston)
2. The evidence must be offered for a proper non-propensity purpose (MIMIC)
3. The evidence must be relevant to that purpose (FRE 401)
4. Probative value must not be substantially outweighed by prejudice (FRE 403)
5. Upon request, court must give a limiting instruction (FRE 105)

MIMIC purposes (non-exhaustive)

• Motive
• Intent
• Mistake / absence of mistake
• Identity / identity via common scheme
• Common plan or scheme / knowledge

Exceptions

• Criminal defendant opening door: defendant may offer character evidence of self (pertinent trait); victim (pertinent trait in appropriate cases)
• Character as essential element (FRE 405(b)): specific instances allowed in defamation (plaintiff’s reputation), negligent hiring/entrustment, entrapment
• Civil cases: character evidence is generally inadmissible for propensity purposes; FRE 404(a)‘s exceptions apply only in criminal cases
• Sexual assault and child molestation: FRE 413–415 create a special propensity rule allowing prior acts evidence in sex offense cases

Policy

• The propensity inference is dangerous because it allows the jury to punish the defendant for who they are rather than what they did
• Risk of prejudice is especially high in criminal cases, where the jury may convict based on general bad character rather than proof of the charged act
• FRE 404(b) is sometimes called a “rule of inclusion” — courts look for a non-propensity purpose as a hook; critics argue this allows propensity evidence in through the back door
• The 2011 amendment requires pretrial notice in criminal cases when prosecution intends to offer 404(b) evidence (FRE 404(b)(3))

Key Cases

• Huddleston v. United States — the standard for admitting FRE 404(b) evidence is conditional relevance (FRE 104(b)); the trial court does not have to find by a preponderance that the act occurred — only that a reasonable jury could so find
• Old Chief v. United States — when defendant offers to stipulate to prior conviction (element of offense), prosecutor’s interest in offering the full record under FRE 404(b) must be weighed carefully under FRE 403

Covered In

• Evidence