Rule 404 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
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Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
(ii) offer evidence of the defendant's same trait; and
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.
Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; 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. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Alleged Victim. In a criminal case, and subject to the limitations imposed by section 115—7 of the Code of Criminal Procedure (725 ILCS 5/115—7), evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide or battery case to rebut evidence that the alleged 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 except as provided by sections 115—7.3, 115—7.4, and 115—20 of the Code of Criminal Procedure (725 ILCS 5/115—7.3, 725 ILCS 5/115—7.4, and 725 ILCS 5/115—20). Such evidence may also be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(c) In a criminal case in which the prosecution intends to offer evidence under subdivision (b), it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or during trial if the court excuses pretrial notice on good cause shown.
Evidence of character or a trait of character of a person for the purpose of proving that the person acted in conformity therewith on a particular occasion is not admissible, except in a criminal case to the extent provided for under Rule 404(a)(1) (regarding the character of the accused), and under Rule 404(a)(2) (regarding the character of the alleged victim). Rule 404(b) renders inadmissible evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith, but allows proof of other crimes, wrongs, or acts where they are relevant under statutes related to certain criminal offenses, as well as for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
At the outset, note that IRE 404 (like FRE 404) addresses character evidence in two subdivisions, (a) and (b) — each of which first provides the general rule barring evidence designed to prove propensity, but then provides exceptions to that general rule.
IRE 404(a): General Rule Excluding Character Evidence
IRE 404(a) provides the general principle that character evidence (which, under IRE 405(a), is established by reputation or opinion) is not admissible to prove "action in conformity therewith on a particular occasion" (i.e., proof of propensity). A good illustration of what the rule prohibits in not allowing character evidence to prove conforming action—and demonstrating that proof of both negative and positive character evidence is prohibited—is found in the early Illinois Supreme Court decision of Holtzman v. Hoy, 118 Ill. 534 (1886). The appeal in that case was from a judgment of $2,500 for the "alleged negligence and unskillfulness" of a surgeon in treating the plaintiff's leg for a serious and complicated fracture. The sole issue was whether the trial judge properly refused to permit one of the surgeon-defendant's witnesses to answer the question: "I will ask you what his [the surgeon's] reputation is in the community, and among the profession, as being an ordinarily skillful and learned physician?" In the archaic prose of the 19th century (with some highly quotable references about the often short-lived and good reputation even of quacks), the supreme court effectively held that the surgeon's reputation for being skillful and learned was not relevant.
"Careful Habits": Not Defensible As Character Evidence
See the Author's Commentary on Ill. R. Evid. 406 regarding the special concurrence in Powell v. Dean Foods, 2013 IL App (1st) 082513-B, as to why "careful habits" is a relic of the past, should not be admitted in Illinois courts as character evidence, and is not admissible as habit evidence (and why IPI (Civil) 10.08 is improperly being used to instruct juries), because "careful habits" does not describe a regular response to a specific situation and, where such evidence is sought to be introduced as character evidence, IRE 404(a) expressly precludes admissibility. In short, such evidence should not be admitted as either habit evidence or character evidence. See also Marc D. Ginsberg, An Evidentiary Oddity:"Careful Habit" - Does the Law of Evidence Embrace This Archaic/Modern Concept? 43 Ohio N. U. L. Rev. 293 (2017), discussing the origins of Illinois' careful habits and calling for its abolition.
IRE 404(a)'s Exceptions to Non-Admissibility
After providing the general principle of non-admissibility of character evidence, IRE 404(a) then provides three exceptions to that general principle, the first two of which apply only in criminal cases and are first exercisable only by the defendant (IRE 404(a)(1) and (2)), while the third applies in both civil and criminal cases (IRE 404(a)(3)). Each of the exceptions is explained below in the separate Author's Commentaries on Ill. R. Evid. 404(a) (1), (2), and (3).
IRE 404(b): General Rule of Exclusion and Exceptions to the General Rule
IRE 404(b) provides the general principle that evidence of other crimes, wrongs, or acts (i.e., evidence of specific instances of conduct) is not admissible "to prove the character of a person in order to show action in conformity therewith" (i.e., propensity), but then it provides Illinois statutory exceptions that permit evidence to show propensity, and (as in the federal rule) allows well established common-law exceptions that are admissible for purposes other than to show propensity—i.e., for proof of the non-character purposes permitted by the rule (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).
Thus, both subdivisions of IRE 404 generally prohibit evidence for propensity purposes, but IRE 404(a) allows character evidence for such purposes in some specified circumstances, while IRE 404(b) allows evidence of specific instances of "crimes, wrongs, or acts" offered for propensity purposes as allowed by specific statutes, as well as those offered not for propensity purposes but for the specific non-character purposes allowed by the rule.
The first part of IRE 404(a)(1), which allows evidence of a pertinent trait of character offered by a defendant in a criminal case, or by the prosecution to rebut such evidence, is identical to FRE 404(a)(1) before the latter's amendment solely for stylistic purposes effective December 1, 2011. See People v. Lewis, 25 Ill. 2d 442 (1962) (whether or not he testifies at trial, defendant may offer proof as to a pertinent trait of his character); People v. Holt, 398 Ill. 606 (1948) (where defendant offers evidence of his character trait, the State may offer evidence regarding the same character trait on rebuttal).
The second part of pre-amended FRE 404(a)(1) (now addressed in FRE 404(a)(2)(B)(ii) through amendment effective December 1, 2011), was not adopted because there is no Illinois authority that permits prosecution evidence to rebut a defendant-offered character trait of the victim by admitting evidence concerning the same trait of character of the defendant. Under the federal rule, in contrast, when the defendant attacks the...
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