§ 10.01 Introduction

• Jurisdiction: United States

§ 10.01 Introduction

The saying, "Once a thief, always a thief," captures the notion of propensity or disposition proof, better known as character evidence. Federal Rule 404(a) governs the circumstantial use of character evidence—the admissibility of evidence of a character trait to prove that a person acted in accordance with that trait on a particular occasion (i.e., character-as-proof-of-conduct). For example, a person's character for honesty may be circumstantially relevant to a theft charge because it could be argued that a person with an honest character tends to act in conformity with that character and thus would be less likely to steal. Similarly, it could be argued that a dishonest person tends to act in accordance with that character and hence is more likely to steal.¹

General prohibition. Although character evidence may be probative, at least in some cases, it is generally inadmissible. Both Rule 404(a)² and Rule 404(b)³ prohibit character-as-proof-of-conduct.

Exceptions. Much of the prejudice inherent in the use of character disappears when an accused offers evidence of her own character or that of a victim. Accordingly, Rule 404(a) (2) 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 limiting the use of the victim's character in sex offense cases.

A third exception in Rule 404(a)(3) involves a witness's character and is limited to impeachment (i.e., character for untruthfulness), a topic discussed in chapter 22. Amendments enacted in 1994 recognize exceptions in sex offense cases (Rules 413-15).

Methods of proof. Rule 404(a) specifies the conditions under which character evidence is admissible. It does not specify the methods of proof that may be used to establish character. Instead, Rule 405(a) governs the methods of proof. Generally, only opinion and reputation evidence (not specific acts) may be used to prove character when a Rule 404(a) exception applies.

"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."⁴ In this situation, specific instances of conduct may be used to establish character.

Other-acts evidence. Rule 404(b) provides that...