Character Evidence and Other Acts (MIMIC)

FRE 404(a)(1) embodies the foundational rule: evidence of a person's character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character. The fear is that a jury will convict because the defendant is a 'bad person' rather than because she committed THIS act. Three exceptions arise in CRIMINAL cases under 404(a)(2). First, the accused may offer evidence of a pertinent trait (a defendant charged with assault may show a peaceable character); doing so 'opens the door,' letting the prosecution rebut with its own reputation/opinion evidence.

Second, the accused may offer evidence of an alleged VICTIM'S pertinent trait (the victim's violent character to support self-defense); this opens the door both to rebuttal about the victim AND to the prosecution proving the SAME trait of the defendant. Third, in a HOMICIDE case, if the defendant claims the victim was the first aggressor, the prosecution may offer evidence of the victim's peaceable character even without a defense character attack.

Under FRE 405(a), when character is admissible, it is proved on direct by reputation or opinion (specific acts only on cross); specific acts are allowed on direct only when character is an essential ELEMENT of a claim or defense (405(b), e.g., defamation, negligent entrustment).

FRE 404(b)(1) bars evidence of any other crime, wrong, or act to prove a person's character in order to show conformity. But FRE 404(b)(2) permits the SAME evidence for a non-propensity purpose. The classic mnemonic is MIMIC: Motive, Intent, absence of Mistake/accident, Identity (often via a signature modus operandi), and Common plan or scheme. The rule's text also lists opportunity, preparation, and knowledge.

To admit, the proponent must (1) offer it for a proper non-propensity purpose, (2) show by sufficient evidence that the act occurred (Huddleston v. United States: the FRE 104(b) conditional-relevance standard — the jury could reasonably find the act by a preponderance), and (3) survive FRE 403 balancing. A limiting instruction is given on request. On notice: in a criminal case the prosecution must, on request, provide reasonable advance notice of 404(b) evidence. MBE trap: 'identity' requires a modus operandi so distinctive it operates like a signature; mere similarity of crimes is not enough.

Congress carved a major exception. FRE 413 (criminal sexual-assault cases), FRE 414 (criminal child-molestation cases), and FRE 415 (civil cases based on such conduct) permit evidence that the defendant committed ANY OTHER sexual assault or child molestation, and the evidence 'may be considered on any matter to which it is relevant' — including PROPENSITY. This directly overrides the 404 bar for these offenses. The evidence is still subject to FRE 403 balancing, and the proponent must give 15 days' notice.

These rules are frequently tested because they reverse the usual intuition: in an ordinary assault case the defendant's prior assaults are barred propensity evidence, but in a sexual-assault case the defendant's prior sexual assaults come in to show propensity.

The criminal character exceptions operate as a tightly sequenced door-opening game that examiners love to test. The prosecution may NOT initiate character evidence against the accused; only the defendant can open the door.

When the accused offers a PERTINENT trait (a fraud defendant offers honesty; an assault defendant offers peaceableness), FRE 404(a)(2)(A) lets the prosecution rebut with reputation/opinion evidence of the same trait AND cross-examine the defendant's character witnesses with 'did you know' (opinion) or 'have you heard' (reputation) questions about relevant specific instances — but the prosecution must have a good-faith basis for the act and may not prove it by extrinsic evidence.

When the accused attacks the alleged VICTIM'S pertinent trait under FRE 404(a)(2)(B) (the victim's violent character to support self-defense), the prosecution gains two responses: it may rebut with evidence of the victim's good (peaceable) character AND offer evidence of the SAME trait in the defendant — so attacking the victim's violence opens the defendant's own violence to scrutiny. The homicide variant under FRE 404(a)(2)(C) lets the prosecution show the victim's peaceable character whenever the defendant claims the victim was the first aggressor, even by mere evidence rather than a formal character attack.

FRE 405 then dictates the FORM: when character is admissible to show conduct, it is proved on direct only by reputation or opinion, with specific instances reserved for cross-examination; specific instances are allowed on DIRECT only when character is an essential ELEMENT of a charge, claim, or defense (defamation, negligent entrustment, entrapment predisposition, or a self-defense claim resting on the defendant's KNOWLEDGE of the victim's violent acts, where those acts prove the defendant's state of mind rather than the victim's propensity).

Work a MIMIC hypothetical: a defendant charged with embezzlement claims he transferred funds by innocent mistake. The prosecution offers three prior uncharged transfers in which he diverted money the same way. This is not propensity — it is offered to negate the claimed mistake and to show intent and a common plan under FRE 404(b)(2). The proponent must (1) articulate the non-propensity purpose, (2) satisfy Huddleston's FRE 104(b) standard that a jury could find the prior acts occurred by a preponderance, (3) survive FRE 403 balancing, and (4) give the required notice; a limiting instruction issues on request.

California maps onto this through CEC 1101(a)-(b), CEC 1102 (defendant's good character), and CEC 1103 (victim's character, broader because it permits proof by specific instances and, once invoked, opens the defendant's same trait), while CEC 1108 and CEC 1109 carve out the sex-offense and domestic-violence PROPENSITY exceptions — both subject to CEC 352 and both surviving Proposition 8.

Character Evidence: Federal vs. California

California parallels the federal scheme but diverges in important ways. CEC 1101(a) bars propensity character; CEC 1101(b) preserves the MIMIC-type non-propensity uses (motive, intent, knowledge, identity, common plan, absence of mistake). CEC 1102 lets a criminal defendant offer evidence of his own good character (and the prosecution to rebut). CEC 1103 is broader than the federal rule: a criminal defendant may prove the VICTIM'S character (including violent disposition) by reputation, opinion, OR specific instances, and once he does, the prosecution may rebut and may also offer the defendant's same trait; Prop 8 preserves CEC 1103.

Critically, California has TWO propensity exceptions: CEC 1108 admits the defendant's other sexual offenses in a sex-crime prosecution (the CA analog to FRE 413-414, upheld in People v. Falsetta), and CEC 1109 admits prior acts of DOMESTIC VIOLENCE, elder abuse, or child abuse in a prosecution for such an offense — a propensity exception with NO federal counterpart — each subject to CEC 352. Note CA generally allows proving character by specific instances more freely than FRE 405.