1. The character evidence rule follows the same pattern as Rules 407-411. There is a definition of what constitutes characters evidence, a basic rule declaring character evidence not admissible for its most obvious purpose, and some exceptions for situations in which it is admissible if offered for other purposes.
2. Definition. Exactly what is character evidence?
a) It is not defined in the text of the FRE. See Rule 404.
b) The definition is tricky, because most people associate character with moral qualities. That os part of the definition, but not the whole. Character also
includes non-moral characteristics, behavioral tendencies, and habits of life, which would include things having nothing to do with morality like carefulness,
shyness or fondness for cats. While character evidence often concerns a person's moral qualities, it is not limited to moral behavior. Character is a pattern of
any kind of behavior, whether it involves an issue of morality or not.
c) The definition is also tricky because you have to distinguish "fixed disposition" from "tendency." There is a difference between fixed behavior that is always
the same, and a mere tendency to behave in a certain way. The difference is important. Fixed patterns of behavior are called "habits" and fall under Rule 406,
which says habits are admissible. A tendency to behave in certain ways is character, which falls under Rule 404, and is not admissible.
d) The definition includes both the aggregate of a person's qualities (a "good" person) and individual traits such as recklessness or violence.
3. A witness cannot, of course, know another's true character. That's like a mental state, and we cannot know for sure what's in another person's mind.
Therefore, you cannot ask a witness what is the defendant's character. You must instead go about proving character indirectly. Three types of evidence are used:
a) Reputation (what lots of people say about the defendant's character).
b) Personal opinion based on the witness knowing the defendant over a period of years
c) Specific acts that illustrate the character trait (e.g., several speeding tickets offered to show that a person has a tendency to drive fast).
4. Character evidence is not admissible to show specific behavior. In other words, a tendency to drive carelessly is not admissible to prove careless driving on
the day of the accident.
5. There are 4 exceptions to the rule that character evidence is not admissible. The first is when character is "in issue," i.e., is a material element of the cause of
action. There are only 7 known situations in which character is itself a material issue.
a) In a case for defamation of character
b) Parental fitness in custody cases
c) Negligent hiring of an employee with bad character
d) Whether the decedent was a good provider in a wrongful death case (only in some states)
e) Habitual offender statutes
f) RICO (requires proof of a pattern of racketeering activity)
g) Rebutting an entrapment defense by showing that the defendant had a propensity to commit the crime and was not an "otherwise innocent" person.
6. When character evidence is offered to prove something other than the person's tendency to engage in that behavior. For example, the prosecution cannot
prove that the defendant has a history of writing bad checks for the purpose of proving that he is guilty of writing a bad check on August 13. But the
prosecution may offer proof of a pattern of bad check writing for other purposes, for example:
a) If the defendant denies that the handwriting on the check is his, the prosecution can introduce a bunch of previous bad checks written by the defendant to
show that the handwriting is the same. The prosecutor could use any set of writings by the defendant as handwriting exemplars. The fact that the prosecutor
happens to use bad checks is just a coincidence.
b) If the defendant claims he didn't know there were no funds in the account, the prosecutor could show a pattern of bad check writing, including several that
were returned marked "nsf," to show that the defendant in fact knew that the account had no funds in it.
7. Rule 404(a) contains several related exceptions for criminal cases.
a) The defendant can prove his own good character (general or specific trait), and the state may rebut in kind. This is a very broad exception.
b) The defendant may prove pertinent traits of the victim's bad character, and the state may rebut in two ways -- by proving the victim's good character or by
proving that the defendant has equally bad character. This is a narrow exception, used mostly in self-defense cases in which character for violence is offered to
show who was the primary aggressor.
c) The prosecution may prove the peaceful character of the victim of a homicide to negate the defendant's claim of self-defense.
8. In some states, but not all, these exceptions also apply in civil intentional tort cases based on criminal conduct.
9. Rule 404(a)(3) has an exception for the bad character of a witness with respect to truthfulness, offered as impeachment evidence under Rules 607, 608, and
609.
10. Just because a character evidence exception is invoked does not make the evidence admissible.
a) In general, you may only prove character by reputation or opinion evidence, and not by proving specific acts. The only time you can prove specific acts is if
character is directly in issue or on cross-examination of a character witness.
b) If character is proved by reputation, a foundation is required that the witness has knowledge of the person's reputation within a community.
c) If character is proved by opinion, a foundation is required that the witness has known the person over a long enough period of time to get to know the
person's behavioral characteristics.
d) Character evidence is subject to Rule 403 balancing.