§ 10.01 Introduction [137-38]

 

The saying, “Once a thief, always a thief,”captures the notion of propensity or disposition proof, better known as character evidence.  Although character-as-proof-of-conduct may be probative, at least in some cases, it is generally inadmissible under Rule 404.  However, recent amendments drastically change this rule in sex offense cases (see Rules 413-15).

 

Exceptions.  Rule 404(a) recognizes exceptions for (1) a criminal defendant’s character and (2) a victim’s character in self-defense cases when offered by the accused.  Rule 412, the rape shield law, is a special provision governing the victim’s character in sex offense cases.  A third exception in Rule 404(a) involves a witness’s character and is limited to impeachment (i.e., character for truthfulness), a topic discussed in chapter 22. 

 

 

§ 10.02 Rationale for Prohibiting Character Evidence [138]

 

Although character evidence may be probative, it is generally excluded because it is extremely prejudicial.  There is a concern that the jury will overvalue the evidence and convict the accused for who he is rather for what he has done. 

 

§ 10.03 Methods of Proof  [138-40]

 

Rule 405(a) governs the methods of proof.  Generally, only opinion and reputation evidence (not specific acts) are permitted to prove character when a Rule 404(a) exception applies.  However, specific instances of conduct may be used during cross-examination of a character witness to test the witness’s qualifications to testify on character.

 

§ 10.04  Accused’s Character: FRE 404(a)(1)  [140-44]

 

Under Rule 404(a)(1), the accused may offer evidence of a pertinent character trait (but only through reputation or opinion, Rule 405(a)), in which case the prosecution may respond by cross-examining the character witnesses on specific acts to test their qualifications or by introducing rebuttal character witnesses.  Moreover, if the accused introduces evidence of a victim’s violent character under Rule 404(a)(2), the prosecution may respond with evidence of the accused’s violent character.

 

§ 10.05 Accused’s Character in Sex Offense Cases: FRE 413-15 [145-48]

In sex offense cases, the prosecution (plaintiff) may offer evidence of the accused's character under Rule 413 (rape cases), Rule 413 (child molestation), and Rule 415 (civil cases).

 

§ 10.06  Victim’s Character in Self-defense Cases: FRE 404(a)(2) [148-50]

 

The accused may offer evidence of a victim's violent character (but only through reputation or opinion evidence) on the first-aggressor issue, in which case the prosecutor may offer rebuttal character evidence.  Note that there is a different use of character in self-defense cases – communicated character – on the issue of reasonable fear.  Because this is not character-as-proof-of-conduct, Rules 404(a) and 405 do not apply.  Instead, Rules 401-403 control.

 

§ 10.07 Rape Shield Law: FRE 412 [150-56]

 

Rule 412, the rape shield law, generally precludes evidence of a victim's character in sex offense cases. There are three exceptions: (1) to prove that the origin of semen, pregnancy, or other physical evidence was someone other than the accused, (2) to prove a victim's past sexual activity with the accused, and (3) when constitutionally required. In addition, notice and in-chamber procedures are mandated.

 

§ 10.08 Character Evidence in Civil Cases [156]

 

The first two exceptions in Rule 404(a) appear to apply only in criminal cases because the drafters used the term “accused” and the committee note supports this position.  A small minority of federal courts, however, have carved out an exception in civil cases when a central issue is criminal in nature.

 

§ 10.09 Character as Element of a Cause of Action or Defense [156-57]

 

“Character in issue.”  There is a second use of character evidence.  It involves those rare cases in which character is an element of a cause of action, a crime, or a defense.  Rule 404(a) does not cover this use of character.  Rule 405(b), however, specifies the methods of proof when character is “in issue.”