Section 12.5 Character or Propensity Evidence Distinguished

• Library: Evidence 2017

D. (§12.5) Character or Propensity Evidence Distinguished

While evidence of habit, routine practice, or business custom may be admitted when supported by proper foundation, the rules permitting evidence of character or propensity are far more limited. Cotner Prods., Inc. v. Snadon, 990 S.W.2d 92 (Mo. App. S.D. 1999) (with certain exceptions, character evidence of party in a civil action is not admissible). Essentially, Federal Rules of Evidence 403, 404, and 405 govern the admissibility of character evidence in federal civil and criminal cases. Missouri rules of evidence are largely consistent with Federal Rules 403–405 regarding proof of character evidence. Federal Rule of Evidence 403, of course, constitutes a broad prohibition against the admission of any evidence whose probative value is substantially outweighed by unfair prejudice. Within the constraints of Federal Rule of Evidence 403 and § 403 of Missouri Evidence Restated (MoBar 5^th ed. 2015), however, Federal Rule of Evidence § 404(b) and § 404(b) of Missouri Evidence Restated specifically define the exceptions to the general prohibition against the use of character evidence to prove conduct on a specific occasion.

Federal Rule of Evidence 403 states:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Federal Rule of Evidence 404 states:

(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;

(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

(ii) offer evidence of the defendant’s same trait; 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.

(3) Exceptions for a Witness. Evidence of a witness’s character...