IMPROPER CHARACTER EVIDENCE (I)

FRE 404

Questions that trigger improper character evidence elicit testimony for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person. The rule largely refers to a person’s tendency to act in conformity with a particular trait, such the traits of violence, dishonesty, or criminal activity. This is a general rule of exclusion that applies to both civil and criminal proceedings.

Examples

• “Would you agree or disagree that your husband was a peaceful man?”
• “Oh, when I first met Abraham, he was one of the most gentle and kind men on earth. He was just a lawyer. He became President much later.”
• “Had you ever previously seen John Wilkes Booth act violently?”
• “Did Mr. Booth’s work in Julius Caesar affect his propensity for violence?”

FRE 404. Character Evidence; Crimes or Other Acts

(a) 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:

(A) 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;

(B) 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:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) 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.

(b) 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:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Summary

Typically, character evidence is only admitted for three purposes at trial: (1) to prove character, if character is a substantive issue in the litigation; (2) to prove, through circumstantial evidence, an aspect of an individual’s conduct; or (3) impeach or strengthen the credibility of a witness.

Character evidence may be offered in three forms:

1. as opinion
2. as reputation evidence, and
3. as evidence of specific instances of conduct.

Several exceptions exist for the rule against character evidence. One of the most commonly used exceptions for character evidence is habit evidence, which is generally admissible. Evidence may be submitted for the purpose of proving that an individual acted in a particular way on a particular occasion in question based on that person’s tendency to reflexively respond to a particular situation in a particular way (See Rule 406).

Rule 404(b) is also important to note, since it expresses the principle that prior misconduct is inadmissible to show criminal propensity, i.e., “he did it once, so he will do it again!” This type of evidence is considered too prejudicial for the jury in most instances.

404(b) also lists admissible reasons for character evidence: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Overall, character evidence is generally inadmissible. However, a criminal defendant may present character evidence about himself or about the victim; the prosecution will be allowed to present rebuttal character evidence in this instance. Also, if the character evidence is introduced to attack credibility under Rules 607, 608, and 609, it may be introduced.

Case Law (Improper Character Evidence)

• U.S. v. Wallace, 759 F.3d 486 (5th Cir. 2014) (defendants charged with distributing meth; prior state convictions for possession and manufacture of meth permitted as long as jury instructed it is only to consider such evidence to show knowledge, intent, and absence of mistake – i.e., that the two defendants knew each other as more than friends and were familiar with the meth business)
• Zubulake v. UBS Warburg LLC., 382 F. Supp. 2d 536 (S.D.N.Y. 2005) (defendant employer could not use evidence of plaintiff's prior employment to show she had a propensity for certain performance deficiencies)
• U.S. v. Fulmer, 108 F.3d 1486 (1st Cir. 1997) (evidence that the defendant was seeking vengeance for a difficult family relationship was admissible to show his motive for threatening a federal agent who refused to pursue criminal sanctions against the family)
• Brunet v. United Gas Pipeline Co., 15 F.3d 500 (5th Cir. 1994) (evidence of prior convictions admissible to show towboat company was negligent in hiring crew)
• U.S. v. Whittington, 26 F.3d 456 (4th Cir. 1994) (testimony describing the defendant as a “dangerous woman,” a “rat,” and a “snake” was improper character evidence)
• U.S. v. Jenkins, 7 F.3d 803 (8th Cir. 1993) (prior narcotic sales were held to be inadmissible character evidence in a prosecution for the same crime)
• U.S. v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993) (admission of propensity evidence almost always constitutes error)
• Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985) (evidence from three sources regarding plaintiff’s drinking practices over six-year period sufficient to establish his habit of drinking on the job)
• U.S. v. Murray, 618 F.2d 892 (2d Cir. 1980) (in a prosecution for conspiracy to import and distribute cocaine and marijuana, the testimony of a codefendant that the defendants had shown him a garbage bag full of marijuana was admissible to show opportunity and intent to distribute large quantities of drugs)
• Reyes v. Missouri Pac. R. Co., 589 F.2d 791 (5th Cir. 1979) (evidence of four prior misdemeanor convictions for public intoxication was considered character evidence and held inadmissible to show that the plaintiff was intoxicated at the time he was run over by a train as he lay on the railroad tracks at night)
• U.S. v. Wyers, 546 F.2d 599 (5th Cir. 1977) (reference to the defendant being unemployed is not character evidence under Rule 404(a))