Rule 404. Character Evidence Not Admissible to Prove Conduct; Exception; Other Crimes

• Library: South Carolina Evidence Annotated (SCBar) (2019 Ed.)

Rule 404. Character Evidence not Admissible to Prove Conduct; Exception; Other Crimes

(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 to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Note:

Rule 404(a) is identical to the federal rule and is consistent with the law in South Carolina. State v. Peake, 302 S.C. 378, 396 S.E.2d 362 (1990).

Rule 404(a)(1) is identical to the federal rule and is consistent with the law in South Carolina. State v. Lyles, 210 S.C. 87, 41 S.E.2d 625 (1947) (a defendant may put in evidence of his good character); State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990) (when the accused offers evidence of his good character regarding specific character traits relevant to the crime charged, the state may cross-examine as to acts relating to the traits focused on by the accused).

Rule 404(a)(2) identical to the federal rule and is consistent with the law in South Carolina. State v. Boyd, 126 S.C. 300, 119 S.E. 839 (1923).

Rule 404(b) differs in two respects from the federal rule. First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). See also Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369 (1943) (Lyle applicable in civil cases). Second, the South Carolina rule does not contain the requirement which is in the federal rule that, upon request by an accused, the prosecution must provide reasonable notice of the general nature of any evidence it intends to introduce under the rule. With the exception of notice of evidence to be used in aggravation in the sentencing phase of capital cases, S.C. Code Ann. § 16-3-20(B) (Supp. 1993), there is no similar requirement under South Carolina law. The rule does not set forth the burden of proof required for the admission of evidence of bad acts not the subject of a conviction and, therefore, case law would control. State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989) (in a criminal case, evidence of other crimes or bad acts must be clear and convincing if the acts are not the subject of a conviction). Further, when the prejudicial effect of evidence substantially outweighs its probative value, the evidence may be excluded under rule 403 which is consistent with prior case law. State v. Garner, 304 S.C. 220, 403 S.E.2d 631 (1991).

Annotations Rule 404

Generally - Open the Door

A party who opens the door to evidence cannot complain of its admission. "[W]hen a party introduces evidence about a particular matter, the other party is entitled to explain it or rebut it, even if the latter evidence would have been incompetent or irrelevant had it been offered initially." "Whether a person opens the door to the admission of otherwise inadmissible evidence during the course of a trial is addressed to the sound discretion of the trial judge." State v. Heyward, 422 S.C. 488, 497, 812 S.E.2d 432, 437 (Ct. App. 2018), reh'g denied (Apr. 26, 2018).

"It is firmly established that otherwise inadmissible evidence may be properly admitted when opposing counsel opens the door to that evidence." State v. Page, 378 S.C. 476, 482, 663 S.E.2d 357, 360 (Ct. App. 2008) (citing State v. Young, 364 S.C. 476, 485, 613 S.E.2d 386, 391 (Ct. App. 2005)). "Whether a person opens the door to the admission of otherwise inadmissible evidence during the course of a trial is addressed to the sound discretion of the [circuit court]." State v. McCray, 413 S.C. 76, 92-93, 773 S.E.2d 914, 922-23 (Ct. App. 2015).

404(a)

Alcoholism

"[E]vidence that the victim is an alcoholic is not admissible to prove she was intoxicated at a particular time." Walker v. State, 397 S.C. 226, 241-42, 723 S.E.2d 610, 618 (Ct. App. 2012).

Character Speculation

Rule 404, SCRE, limits the circumstances when a defendant's character may be properly brought into evidence. Subsection (a) of the rule reads in relevant part: "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." Pursuant to this rule, South Carolina courts have held that while "[e]vidence that police began an investigation because of reports of criminal activity [is] admissible..., identification of an individual as the suspect of a criminal investigation, based upon speculation and effectively calling into question that individual's character, is not." State v. Gonzales, 360 S.C. 263, 269, 600 S.E.2d 122, 125-126 (Ct. App. 2004).

Criminal Profiling

While criminal profiling may have a legitimate function in law enforcement investigations, such information constitutes propensity evidence and, therefore, has no place in a trial to "to suggest a decision on an improper basis." State v. Huckabee, 419 S.C. 414, 425, 798 S.E.2d 584, 589 (Ct. App. 2017), reh'g denied (Apr. 21, 2017), cert. denied (May 24, 2018).

Generally

The State cannot offer evidence of the victim's good character unless the defendant first attacks the victim's character. State v. Langley, 334 S.C. 643, 648, 515 S.E.2d 98, 100 n.3 (1999).

In a criminal case, the State cannot attack the character of the defendant unless the defendant himself first places his character in issue. Rule 404(a), SCRE. State v. King, 334 S.C. 504, 512, 514 S.E.2d 578, 582 (1999).

404(a)(1)

Generally

As a general rule, evidence of a person's prior bad acts is not admissible for the purpose of proving action in conformity therewith on a particular occasion. Judy v. Judy, 384 S.C. 634, 682 S.E.2d 836, 840 (Ct. App. 2009).

"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." Rule 404(a), SCRE. An exception to this rule exists for "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same." Id. Rule 404(a)(1). "The term 'character' refers to a generalized description of a person's disposition or a general trait such as honesty, temperance or peacefulness." State v. Nelson, 331 S.C. 1, 7, 501 S.E.2d 716, 719 (1998). "Generally speaking, character refers to an aspect of an individual's personality which is usually described in evidentiary law as a 'propensity.'" State v. Holder, 382 S.C. 278, 676 S.E.2d 690 (2009).

Evidence of a defendant's character is generally not admissible to show a propensity to act accordingly. Rule 404(a)(1), SCRE. However, when the accused offers evidence of his good character regarding specific character traits relevant to the crime charged, the solicitor has the right to cross-examine him as to particular bad acts or conduct. The State is restricted to showing bad character only for the traits initially focused on by the accused, and impeachment may be done by introducing prior convictions with extrinsic evidence. State v. Young, 378 S.C. 101, 106, 661 S.E.2d 387, 389 (2008).

Rule 404(a)(1), SCRE, allows evidence of a pertinent character trait to be offered by the defendant or offered by the State to rebut the defendant's character trait evidence. Accordingly, our supreme court has held the good reputation of the accused, if proved, may be taken into consideration by the jury in determining whether or not he or she committed the crime charged. State v. Lee-Grigg, 374 S.C. 388, 410, 649 S.E.2d 41, 52 (Ct. App. 2007).

"[A]llows character trait evidence if offered by the accused or offered by the State to rebut the accused's character trait evidence. State v. Braxton, 343 S.C. 629, 635, 541 S.E.2d 833, 836 n.1 (2000).

"[S]ubsection (1) provides an exception to the general rule that character evidence is not admissible at criminal trials. Rule 404(a)(1), SCRE, is identical to the federal rule and is consistent with the law in South Carolina. Rule 404(a)(1) note, SCRE Under the South Carolina rule, like the federal rule, the accused may introduce evidence as to a pertinent trait of his character regardless of whether or not the accused testifies at trial. Rule 404(a)(1) permits such evidence when a defendant demonstrates he or she possesses a character trait that relates to the alleged offense--a "pertinent" trait of his or her character." State v. Mizell, 332 S.C. 273, 504 S.E.2d 338, 340 (Ct. App. 1998).

Open The Door To Character

Evidence of a defendant's character is generally not admissible to show a propensity to act accordingly. Rule 404(a)(1), SCRE. However, when the accused offers evidence of his good character regarding specific character traits relevant to the crime charged, the solicitor has the right to cross-examine him as to particular bad acts or conduct. The State is restricted to showing bad character only for the traits initially focused on by the accused, and impeachment may be done by introducing prior convictions with extrinsic evidence. State v. Young, 378 S.C. 101, 106, 661 S.E.2d 387, 389 (2008).

404(b)

Appeal

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