Rule 404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

• Jurisdiction: Arizona

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Comment

Rule 402 provides that all relevant evidence is admissible unless some other provision precludes its admission. Subsection (a) of Rule 404 provides that character evidence is not admissible in either a civil or criminal trial for the purpose of proving that the person acted on the occasion in question consistently with his or her character.[1] The reason for this limitation on the use of character evidence lies in the possibility the jurors might decide the issue based on their assessment of a party's character rather than deciding the issue based on the evidence of what actually happened on the particular occasion in question.

Subsection (a) contains three exceptions, two of which apply only in criminal cases.[2] Subsection (a)(1) provides that the defendant is permitted to introduce evidence of a pertinent trait of his or her character.[3] Whether the character trait is pertinent depends on the nature of the case. If the charge involves premeditated murder, the defendant is entitled to introduce evidence of impulsiveness;[4] if the charge involves dishonesty, such as embezzlement, the defendant is entitled to introduce evidence of truthful character. The defendant is therefore not entitled, in a charge involving violence, to introduce evidence of a truthful character. If the defendant does introduce evidence of his or her character as provided by this rule, the prosecution is then entitled to introduce evidence to rebut the defendant's evidence,[5] but is not otherwise entitled to introduce evidence of the defendant's character.[6]

Subsection (a)(2) provides that the defendant in a criminal action is permitted to introduce evidence of a pertinent trait of the victim's character.[7] Again, whether the character trait is pertinent depends on the nature of the charge or defense. If the defendant does introduce evidence of the victim's character as provided by this rule, the prosecution is then entitled to introduce evidence to rebut the defendant's evidence, but the prosecutor is not permitted to introduce evidence of the victim's character before the defendant does so.[8] The prosecution is also allowed to introduce evidence of the victim's peaceful character to rebut a claim that the victim was the initial aggressor. The prosecution is not otherwise allowed to introduce evidence of the victim's character.

In a sexual assault case, the defendant may not introduce evidence of the victim's character to show that the victim acted in conformity with that character,[9] but may introduce such evidence when the defendant's intent is an element of the crime[10] or to rebut the state's evidence.[11]

Rule 404(a) determines when a party is entitled to introduce character evidence. Once a party is entitled to introduce such evidence, Rule 405 provides how the party may go about doing so.

The exception in subsection (a)(3) applies in both civil and criminal cases, and allows introduction of evidence of a witness's character, as permitted by Rules 607, 608, and 609, which provide that any party may attack the credibility of a witness, and specify what type of evidence a party may introduce to do so. The parties are therefore precluded from introducing evidence of a witness's character other than that of truthfulness or untruthfulness.

Rule 404(b) governs admission of evidence of other crimes, wrongs, or acts. Because this rule refers to "other" crimes, wrongs, or acts, the Arizona courts have recently held that it governs only other act evidence that is "extrinsic,"[12] and thus does not apply to other act evidence that is "intrinsic," which is defined as follows:

"Other act" evidence is "intrinsic" when the evidence of the other act and the evidence of the crime charged are "inextricably intertwined" or both acts are part of a "single criminal episode" or the other acts were "necessary preliminaries" to the crime charged.[13]

The reasoning is that, if the other crime, wrong, or act is inextricably intertwined, part of a single criminal episode, or a necessary preliminary to the crime charged, it then by definition has some relevance to the crime charged, and thus is not offered merely to prove the character of the defendant. This reasoning is consistent with another recent case[14] wherein the Arizona Supreme Court analyzed the term "common scheme or plan" under Rule 13.3(a)(3), Ariz. R. Crim. P., and concluded that another act is part of a common scheme or plan only if the other act is part of a particular plan of which the charged crime is a part.[15] Based on these new cases, it appears the other acts that were formerly considered admissible because they either were part of a common scheme or plan[16] or completed the story[17] would now be considered intrinsic evidence because they would be either inextricably intertwined, part of a single criminal episode, or necessary preliminaries to the crime charged.

This reasoning is consistent with the joinder and severance provisions of Rules 13.3 and 13.4, Ariz. R. Crim. P. The three subparts of Rule 13.3(a) allow joinder of separate counts if they (1) are of the same or similar character, (2) are based on the same conduct or are otherwise connected in their commission, and (3) are alleged to have been part of a common scheme or plan. The language used in subparts (2) and (3) is essentially the same as that used in the definition of "intrinsic" evidence, which explains why separate counts based on this type of conduct should be joined. Under supbart (1), if the separate counts are merely of the same or similar character, this evidence would be "extrinsic," which would explain why Rule 13.4(b) entitles a defendant to a severance as a matter of right for counts joined under this subsection. Even it the defendant is entitled to a severance as a matter of right, if the "extrinsic" other act evidence is nonetheless relevant as provided by Rule 404(b), that evidence would be admissible in separate trials, thus if the trial court errs by not granting a severance in such a case, any error would be harmless.[18]

In child molestation cases prior to 1996, courts have allowed admission under Rule 404(b) of evidence of similar sexual acts committed by the defendant with the same victim because the courts concluded that the other acts were part of a system, plan, or scheme.[19] Because such other acts would now be considered intrinsic evidence, the courts should allow admission of this evidence without having to go through a Rule 404(b) analysis.[20] Similarly, when the defendant has committed similar acts, including physical assault, against the same victim, if the evidence shows a similar motivation, the other acts also should be considered intrinsic and thus admissible without reference to Rule 404(b).[21]

Because Rule 404(b) does not apply to intrinsic evidence of other crimes, wrongs, or acts, a trial court may not use that rule to preclude intrinsic evidence of other acts. Thus, the only way a trial court could preclude intrinsic evidence is if the opposing party makes a motion under Rule 403, and the trial court concludes that the probative value is substantially outweighed by the danger of unfair prejudice.[22]

For extrinsic evidence of other crimes, wrongs, or acts, Rule 404(b) provides that this evidence is not admissible to prove the character of a person in order to show that the person acted in conformity with that character, but provides that evidence of such specific acts is admissible for any other relevant purpose, such as proof of motive, opportunity, intent, etc. Older cases dealing with admissibility under Rule 404(b) describe it as an "exception" to the rule prohibiting admission of evidence of other acts to prove character. This is a carryover from the pre-rules cases, and does not accurately reflect the analysis under the Rules of Evidence, which is as follows. Rule 402 allows admission of all relevant evidence, unless some other rule precludes admission. Rule 404(b) precludes admission of evidence of other crimes, wrongs, or acts only if such evidence is offered to prove character, but allows admission of such evidence for any other purpose, as long as that purpose is relevant. The inquiry, therefore, is not whether evidence is admissible under some "exception"; the proper inquiry is whether evidence is relevant for some purpose other than showing the character of the person. Cases also refer to this as evidence of "prior bad acts." This description is incorrect because the other acts need not have occurred prior to the event being litigated; they may have occurred after the event if they are relevant.[23] Further, they do not have to be bad acts because the rule allows evidence of "crimes," which are very bad, "wrongs," which are not so bad, and "acts," which may be anything from bad to totally innocuous.[24] It is thus more accurate to refer to this as evidence...