25.3 Character Evidence: The Propensity Ban, Criminal-Case Exceptions & Methods of Proof

25.3 Character Evidence: The Propensity Ban, Criminal-Case Exceptions & Methods of Proof

Character evidence questions turn on three variables: the type of case (civil or criminal), who is offering the evidence and about whom, and the form of proof (reputation, opinion, or specific instances). The rules differ sharply depending on those choices, so identify all three before answering.

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The General Rule: Character Inadmissible for Propensity (FRE 404(a)(1))

Under FRE 404(a)(1), evidence of a person's character or character trait is inadmissible to prove that on a particular occasion the person acted in accordance with the character or trait (propensity / "once a thief, always a thief").

                         ┌──────────────────────────────────────────────┐
                         │   Is evidence offered to prove character     │
                         │   to show conduct in conformity? (Propensity)│
                         └──────────────────────┬───────────────────────┘
                                                │
                       ┌────────────────────────┴────────────────────────┐
                       ▼                                                 ▼
           ┌───────────────────────┐                         ┌───────────────────────┐
           │      CIVIL CASE       │                         │     CRIMINAL CASE     │
           └───────────┬───────────┘                         └───────────┬───────────┘
                       │                                                 │
                       ▼                                                 ▼
           ┌───────────────────────┐                         ┌───────────────────────┐
           │ INADMISSIBLE to prove │                         │ INADMISSIBLE unless   │
           │ conduct in conformity │                         │ Defendant "opens door"│
           │ (Except character in  │                         │ or statutory sexual   │
           │  issue: FRE 405(b))   │                         │ assault rule applies  │
           └───────────────────────┘                         └───────────────────────┘

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Character Evidence in Criminal Cases: The "Mercy Rule"

The prosecution cannot initiate evidence of the defendant's bad character to prove criminal conduct. However, the accused may choose to "open the door" to character evidence under FRE 404(a)(2).

1. Defendant Introduces Own Good Character

• Opening the Door: The defendant may introduce evidence of their own pertinent good character trait (e.g., peacefulness in a homicide/assault prosecution; honesty/truthfulness in a fraud/theft prosecution; law-abiding nature in any prosecution).
• Permissible Form: On direct examination, the defendant's character witness can testify ONLY via reputation or opinion (FRE 405(a)). The witness cannot testify to specific good acts (e.g., "The defendant volunteers at a soup kitchen every Saturday" is inadmissible).

2. Prosecution's Rebuttal Methods

Once the defendant opens the door by presenting pertinent character evidence, the prosecution may rebut using two independent methods:

Method A: Cross-Examining the Defendant's Character Witness (Specific Acts)

• The prosecutor may cross-examine the defense character witness about specific instances of conduct relevant to the trait (FRE 405(a)).
• Form of Question: "Have you heard that the defendant assaulted his neighbor in 2022?" or "Did you know that the defendant was fired for embezzlement?"
• Good-Faith Requirement: The prosecution must possess a good-faith factual basis for the inquiry.
• THE NO-EXTRINSIC-EVIDENCE RULE: If the character witness denies knowledge of the specific act, the prosecution must accept the witness's answer. The prosecution CANNOT introduce extrinsic evidence (such as police reports, arrest records, or calling another witness) to prove that the specific bad act actually occurred.

Method B: Calling Prosecution Rebuttal Character Witnesses

• The prosecution may call its own character witnesses to testify to the defendant's bad character for the same pertinent trait.
• Permissible Form: Rebuttal character witnesses may testify ONLY via reputation or opinion (no specific acts on direct).

3. Victim's Character in Criminal Cases (Self-Defense)

Under FRE 404(a)(2)(B), the defendant may introduce evidence of a pertinent trait of the victim (typically violent character in a claim of self-defense):

• Form: Reputation or opinion only on direct examination.
• Prosecution Rebuttal Options: If the defendant introduces evidence of the victim's bad character trait, the prosecution may:
  1. Introduce evidence of the victim's good character for that same trait (reputation or opinion); OR
  2. Introduce evidence of the DEFENDANT'S bad character for that same trait! (FRE 404(a)(2)(B)(ii)).

The Homicide Peaceful Victim Exception (FRE 404(a)(2)(C))

In a homicide case, if the defendant claims that the victim was the first aggressor, the prosecution may introduce evidence of the victim's character trait for peacefulness to rebut the claim.

• Critical MBE Rule: The prosecution may introduce this evidence even if the defendant introduced zero character evidence regarding the victim (e.g., the defendant merely testified, "The victim lunged at me with a knife").

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Character Evidence in Civil Cases

In civil cases, character evidence is categorically inadmissible to prove conduct in conformity with character.

The Sole Exception: Character "Directly in Issue"

Apart from civil cases involving sexual assault or child molestation (FRE 415), character evidence is admissible in civil cases only when character is an essential element of a claim or defense under substantive law. Common examples include:

1. Defamation: Where truth or damage to plaintiff's reputation is an issue;
2. Negligent Hiring, Retention, or Supervision: Employer's knowledge of employee's incompetence or dangerous character;
3. Negligent Entrustment: Entrusting a vehicle or dangerous instrument to an unfit person;
4. Child Custody Disputes: Parental fitness.

Permissible Form When Character Is in Issue (FRE 405(b))

When character is an essential element, it may be proved by reputation, opinion, AND specific instances of conduct on direct examination.

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Applying the Character Rules

Is It Character Evidence at All?

• Non-propensity purposes: Evidence of a person's other acts offered to show motive, intent, identity, or another non-character purpose is governed by Rule 404(b), not Rule 404(a) (Section 25.4).
• Defendant's knowledge of the victim's violence: In a self-defense case, a defendant may testify that he knew the victim had previously committed violent acts. The evidence is offered to show the defendant's reasonable fear—his state of mind—rather than the victim's propensity, so specific acts known to the defendant are admissible for that purpose.
• Witness credibility: A witness's character for truthfulness is governed by Rules 608 and 609 (Section 25.2).

Criminal Case Mechanics

• Pertinent traits: The trait must relate to the charged crime—peacefulness in an assault or homicide case, honesty in a fraud or theft case, or being law-abiding in almost any prosecution.
• Cross-examination form: The prosecutor may ask a reputation witness, "Have you heard that the defendant was arrested for assault last year?" and an opinion witness, "Did you know that he was arrested?" The prosecutor must have a good-faith basis, and on request the court should instruct the jury that the questions are not evidence that the acts occurred.
• Opening the door to the defendant's character through the victim: Evidence that the victim was violent allows the prosecution to show that the defendant has the same violent trait. Merely testifying that the victim attacked first, without offering character evidence about the victim, does not open that door.
• Homicide first-aggressor rule: In a homicide case, any evidence that the victim was the first aggressor—including the defendant's own account of the fight—allows the prosecution to offer evidence of the victim's peaceful character.
• Rape shield overlay: A defendant charged with a sexual offense may not offer evidence of the victim's sexual predisposition or other sexual behavior except as Rule 412 allows (Section 25.4).

Civil Cases

• Character as an element: In a defamation case where the defendant called the plaintiff a thief and pleads truth, the plaintiff's character for honesty is itself at issue. In a negligent entrustment or negligent hiring case, the incompetence or dangerousness of the driver or employee is an element. In a custody case, a parent's fitness is at issue.
• No propensity use: In a civil battery suit, the plaintiff may not prove that the defendant has a violent character to show he probably struck the plaintiff, and the defendant may not prove his peaceful character—even though the underlying conduct would also be a crime.