Character Evidence

MBEMax wiki article — paired with the Evidence question set on mbemax.com.

One-line summary

Character evidence — evidence of a person's propensity — is generally inadmissible to prove conduct on a particular occasion, but multiple exceptions allow its use in both criminal and civil cases for different purposes and through different forms.

Mnemonic

MIMIC — Motive, Intent, absence of Mistake, Identity, Common plan.

And three forms with a separate mnemonic — R-O-S: Reputation, Opinion, Specific instances.

The basic rule (FRE 404)

Evidence of a person's character is not admissible to prove that, on a particular occasion, the person acted in accordance with the character.

But the same rule has important exceptions:

• 404(a)(2)(A) — Criminal defendant may offer evidence of a pertinent trait of his own character. Prosecution may then rebut.
• 404(a)(2)(B) — Criminal defendant may offer evidence of a pertinent trait of the victim's character (self-defense → violence). Prosecution may then rebut with victim's trait AND defendant's same trait.
• 404(a)(3) — Witnesses — see Impeachment.
• 404(b) — Evidence of other crimes, wrongs, or acts NOT to prove propensity but for non-propensity purposes (MIMIC: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident).

Forms of character evidence (FRE 405)

• 405(a) — Reputation or opinion — both admissible whenever character is in issue or admissible under an exception.
• 405(b) — Specific instances — admissible on direct only when character itself is an element (defamation, negligent entrustment, some entrapment defenses). On cross, specific instances may be used to test the witness's knowledge of reputation/opinion.

Specific rules

• Propensity in general civil cases — not admissible to show conduct in conformity.
• Sexual assault and child molestation (FRE 413–415) — prior similar acts ARE admissible to show propensity in both criminal and civil cases involving sexual assault or child molestation.
• Habit and routine practice (FRE 406) — admissible to prove conforming conduct. Distinguish from character: habit is specific, consistent response to a specific situation.
• Rape-shield (FRE 412) — restrictions on admission of victim's sexual behavior / predisposition in sexual-misconduct cases, with narrow exceptions.

NCBE loves to test

• MIMIC use. Prior acts admissible for non-propensity purpose require: (1) relevance for the non-propensity purpose, (2) proof sufficient to support a jury finding the act occurred (preponderance — Huddleston), (3) FRE 403 balancing, (4) limiting instruction on request.
• Defendant opens the door. If defendant offers good character, prosecution may rebut with opinion/reputation AND (on cross) specific instances in the defendant's past that are probative of the same trait.
• Victim's violent character. In a self-defense case, defendant can offer evidence of victim's violent character. Prosecution may rebut with victim's peaceable character AND defendant's violent character (FRE 404(a)(2)(B)).
• Character "in issue." Libel, child custody, negligent entrustment, negligent hiring/retention — character IS an element; specific instances admissible on direct.
• Habit vs. character. "Always buckles his seatbelt when he gets in a car" = habit. "Is generally a careful person" = character.
• 413-415 twist. In sexual-misconduct cases, propensity is admissible; FRE 403 still applies.
• Rape-shield exceptions. Prior sexual conduct with defendant when consent is at issue; prior conduct to prove source of semen/injury; constitutional exception where exclusion would violate defendant's rights.

Fast hypos

Hypo 1. Criminal theft trial. D offers evidence that he is "an honest person." FRE 404(a)(2)(A) — admissible; prosecution may rebut with opinion/reputation and cross with specific dishonest acts.

Hypo 2. Prosecution's case-in-chief in a fraud case. Government offers evidence of D's previous fraudulent conduct with other victims, same pattern. FRE 404(b) — admissible for MIMIC (common plan, identity, intent) after *Huddleston showing.*

Hypo 3. Negligent entrustment suit. Plaintiff offers evidence of prior reckless driving by the person to whom vehicle was entrusted. Character "in issue" — specific instances admissible under FRE 405(b).

Hypo 4. Sexual assault trial. Prosecution offers evidence of defendant's prior sexual assault of another victim. FRE 413 — admissible as propensity evidence; still subject to FRE 403.

Hypo 5. Torts suit — defendant's habit of speeding on a particular stretch of road every morning. FRE 406 habit — admissible to prove conforming conduct.

Case anchors

• Huddleston v. United States, 485 U.S. 681 (1988) — preponderance standard for FRE 404(b) evidence.
• Old Chief v. United States, 519 U.S. 172 (1997) — stipulation to prior-felon status limited need for detail.
• Michelson v. United States, 335 U.S. 469 (1948) — classic treatment of reputation / cross with prior acts.
• Doe v. Glanzer, 232 F.3d 1258 (9th Cir. 2000) — FRE 413/414 constitutionality.

See also

• Hearsay
• Impeachment
• Privileges
• Relevance — FRE 403

Sources

Fed. R. Evid. 401, 403, 404, 405, 406, 412, 413, 414, 415, 608, 609; Huddleston v. United States, 485 U.S. 681 (1988); Old Chief v. United States, 519 U.S. 172 (1997); Michelson v. United States, 335 U.S. 469 (1948).