Character Evidence and Its Exceptions

Character evidence means proof about the kind of person someone is — honest, violent, careless. Federal Rule of Evidence 404(a) forbids using that proof for one specific inference: that because the person has the trait, the person acted in accordance with it on the occasion in question. Everything in this area follows from separating that forbidden step from the many permitted ones.

The forbidden inference and the reason for it

The prohibition is not a judgment that character has no predictive force. It is a judgment that the inference is too tempting, too imprecise, and too likely to produce a verdict about a person's worth rather than about the event on trial. A jury told that a defendant has beaten people before may convict for the earlier conduct, or lower the standard of proof without noticing.

Because the rule targets a use rather than a fact, the same testimony can be forbidden and permitted in the same trial. A prior assault offered to show a violent disposition is excluded. The same assault offered to show that the defendant knew the victim, or had a reason to want the victim silenced, is not character evidence at all. The purpose is what the rule polices.

When character is an element of the case

Some claims make character itself a fact to be proved. In a defamation action where truth is asserted as a defense, the plaintiff's actual reputation is at issue. In a negligent hiring or negligent entrustment claim, the propensity of the person hired or entrusted is an element. Rule 405(b) allows proof by specific instances of conduct in exactly these situations, because nothing less would let the party prove the element.

Where character is not an element but is admissible for some other reason, Rule 405(a) restricts the method. A witness may testify to reputation in the community or give an opinion, but specific instances may be raised only on cross-examination. That division keeps the trial from splintering into a series of mini-trials about incidents that are not otherwise before the court.

Who may open the door in a criminal case

Rule 404(a)(2) creates exceptions available only in criminal cases and, for the first two, only at the defendant's election. A defendant may offer evidence of a pertinent character trait — peacefulness in an assault prosecution, honesty in a fraud prosecution — and the prosecutor may then rebut it. A defendant who offers evidence of a victim's pertinent trait similarly opens the door to rebuttal about both the victim and the defendant.

A homicide case carries a narrower provision. If the defendant claims the victim was the first aggressor, the prosecutor may offer evidence of the victim's peacefulness. Separate rules restrict evidence of a victim's sexual behavior or predisposition, and other rules permit specified propensity evidence in certain sexual assault and child molestation prosecutions, which are deliberate departures from the general ban.

Other crimes, wrongs and acts

Rule 404(b) is the provision most often litigated. It says that evidence of any other crime, wrong or act is not admissible to prove character in order to show conduct in conformity, but may be admissible for another purpose. The rule lists motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake and lack of accident. The list is illustrative rather than closed.

Courts generally require four things: the evidence must be offered for a proper purpose, it must be relevant to that purpose, its probative value must survive the balancing, and a limiting instruction must be given on request. The proponent must also articulate the chain of reasoning, because a purpose recited without explanation often turns out to be propensity wearing a different label.

Habit, routine practice and attacks on credibility

Rule 406 sits outside the prohibition. Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with it, and no corroboration or eyewitness is required. The distinction from character is one of degree made into a rule: habit is a semi-automatic response to a specific repeated situation. Business routine evidence often overlaps with the exception for records of a regularly conducted activity.

Credibility has its own regime. Rules 608 and 609 permit attacks on a witness's character for truthfulness by reputation, opinion, limited cross-examination about specific acts, and certain convictions. These are character rules that operate by design, and they frequently decide whether a party testifies at all. A ruling admitting a conviction is reviewed under the standard applicable to that category of question, and if a party wants the issue reviewed, the record must be built according to the requirements for preserving an evidentiary ruling.