Rule 2:404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

LibraryA Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES

(a) Character evidence generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character trait of accused. Evidence of a pertinent character trait of the accused offered by the accused, or by the prosecution to rebut the same;

(2) Character trait of victim. Except as provided in Rule 2:412, evidence of a pertinent character trait or acts of violence by the victim of the crime offered by an accused who has adduced evidence of self-defense, or by the prosecution (i) to rebut defense evidence, or (ii) in a criminal case when relevant as circumstantial evidence to establish the death of the victim when other evidence is unavailable; or

(3) Character trait of witness. Evidence of the character trait of a witness, as provided in Rules 2:607, 2:608, and 2:609.

(b) Other crimes, wrongs, or acts. Except as provided in Rule 2:413 or by statute, evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.

NOTES

Subsection (a). The general rule excluding character proof is Virginia law. Williams v. Commonwealth, 203 Va. 837 (1962) (criminal case);

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Commonwealth ex rel. Davis v. Malbon, 195 Va. 368 (1953); S.H. Kress & Co. v. Roberts, 143 Va. 71 (1925) (civil proceeding); National Union Fire Ins. Co. v. Burkholder, 116 Va. 942 (1914). Subsections (1) and (2) generally apply to criminal cases while subsection (3) applies to civil and criminal cases. Note: Isolated acts of prior bad conduct are not admissible on this basis in civil or criminal cases. See McMinn v. Rounds, 267 Va. 277 (2004) (admissibility in certain civil cases).

Subdivision (a)(1). The exception to the general rule of exclusion permits a criminal defendant to introduce evidence of his character, Barlow v. Commonwealth, 224 Va. 338 (1982), and once he has opened the door by doing so, allows the Commonwealth to introduce rebuttal character evidence. Zirkle v. Commonwealth, 189 Va. 862, 871 (1949); Roach v. Commonwealth, 157 Va. 954, 961 (1932); see Gravely v. Commonwealth, 13 Va. App. 560 (1992); see also Gardner v. Commonwealth, 288 Va. 44 (2014) ("a defendant is not limited solely to reputation evidence regarding truthfulness, but may offer evidence to prove good character for any trait relevant in the case"—whether or not the witness has "discussed" that reputation with others—and in rebutting such proof the Commonwealth, unlike the defendant, is limited to evidence of the defendant's bad reputation for the particular trait before the defendant was accused of the present crime or the trial began. Id. at 50.); Argenbright v. Commonwealth, 57 Va. App. 94 (2010) (admissibility of character proof regarding truthfulness and law-abidingness on the issue of guilt in a forgery/money by false pretenses case, and on the issue of credibility of the defendant as a witness—standards for character witness testimony discussed). Note that the exception for reputational proof of character is limited to criminal proceedings. National Union Fire Ins. Co. v. Burkholder, 116 Va. 942, 945 (1914); see Jackson v. Commonwealth, 266 Va. 423 (2003). Under the seminal decision in Zirkle v. Commonwealth, 189 Va. 862 (1949) a defendant's evidence of good character may be "negative," stating that the qualified character witness has not heard of any reputation of the defendant for bad character with respect to a particular trait. Gardner, 288 Va. 44; Barlow v. Commonwealth, 224...

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