§ 10.08 CHARACTER EVIDENCE IN CIVIL CASES

• Jurisdiction: United States

§ 10.08. CHARACTER EVIDENCE IN CIVIL CASES

Assume that you are in a traffic accident, and the other driver says, "This is the fifth accident that I have been in this year." That statement is inadmissible against the other driver if offered to show that person is an incompetent driver (character). According to the drafters, "Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened."¹²²

Note that the exceptions in Rule 404(a)(2) apply only in criminal cases. A few federal courts, however, had carved out an exception in civil cases when a central issue is "criminal" in nature such as assault.¹²³ Rule 404 was amended in 2006 to clarify that the exceptions in Rule 404(a)(2) apply only in criminal cases.

However, Rule 404(a)'s prohibition does not apply when character is an element of a cause of action, such as in a negligent hiring or entrustment suit, or of an affirmative defense, a topic discussed in the next section. In addition, evidence concerning a witness's untruthful character is admissible for impeachment.¹²⁴

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Notes:

^[122] Fed. R. Evid. 404 advisory committee's note.

^[123] E.g., Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266, 1277 (5th Cir. 1989); Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Cir. 1986)...