Character Evidence


Character is one's general disposition to volitional, moral conduct. FRE 406 notes.


Habit is more specific than character. It is one's regular response to a repeated specific situation, without a moral component. Basically subconscious, non-volitional things. FRE 406 notes.

  1. Character Evidence.
    1. 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.
    2. Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
      1. a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
      2. subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
        1. offer evidence to rebut it; and
        2. offer evidence of the defendant’s same trait; and
      3. in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
    3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
  2. Crimes, Wrongs, or Other Acts.
    1. Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
    2. Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
      1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
      2. do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

This is a French rule.

FRE 405(a) forbids testimony about the basis of or specific situations giving rise to one's opinion or reputation. Only the opinion or reputation itself is admissible.

Also, one cannot imply a specific situation, say by saying he was a violent guy and then that she was his girlfriend.

The cross-examiner can ask questions about specific instances if he has a good faith basis that they are true. The witness can then answer. FRE 405(a). However, he must accept the answer as it is received; he cannot admit any extrinsic evidence about it. FRE 608(b).

Knowledge is specially probative to identity. The more specific and unique the knowledge, the more specially probative it is and the more likely that evidence of past actions showing that one has such knowledge is admissible for the permitted use instead of to show character.

  • If it is specific and unique enough, past crimes can also be used to show similar modi operandi. (Like the Wet Bandits in Home Alone.
  • The similarity of two crimes can be a bit lower when it is the defendant seeking to admit evidence of the other crime.

Incredibly unlikely things can be allowed to show intent (because, like, one would be careful to avoid such a thing), but courts are likely to allow really unlikely things even though they really violate FRE 404.

  • They are likely to come in when state of mind is the primary issue and actions are not in dispute.

The exceptions about the defendant or victim in FRE 404(a)(2) are only for criminal cases, not civil.

Other Times Admissible under FRE 404(a)
  1. FRE 608
  2. FRE 609
  3. FRE 412
Actual Exceptions to FRE 404(a)
  1. FRE 404(a)(2)(A)
  2. FRE 404(a)(2)(B)
  3. FRE 404(a)(2)(C)
  4. FRE 404(a)(3), as elaborated by FRE 607, FRE 608, & FRE 609
  5. FRE 413
  6. FRE 414
  7. FRE 415

Under FRE 413/414, evidence that one committed another sexual assault/child molestation is allowed to come in in criminal cases, even if the defendant was not convicted of the other crime.

  • Its admissibility is contingent on a fact under FRE 104(b), and thus only needs a preponderance of the evidence.
  • Evidence of child molestation is also allowed in civil cases under FRE 415.