1. Character Evidence Rules - In General
Public policy, as reflected in the rules of evidence, generally prohibits “character evidence” to prove conduct in conformity with that character trait.
The reasons for this are:
The idea that each case should be judged on its individual merits, not based on what happened in the past.
To prevent a jury from “punishing” a person for past conduct during a trial unrelated to that past conduct.
To prevent the jury from being prejudiced against a party.
Therefore, the character evidence rule generally prohibits:
Testimony about a character trait; AND
Testimony about “prior acts” that show a character trait.
Evidence Lecture 6

2. Evidence of General Character Traits
Rule 404(a) provides:
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
The rule does provide three exceptions:
Certain character evidence to assist a criminal defendant in a criminal trial. 404(a)(1)
Certain character traits of an alleged victim in a criminal case. 404(a)(2)
Certain character evidence of a witness. 404(a)(3)
Another exception in general applies where the character trait is a key element of the case.
e.g., in the case of insanity defense
Evidence Lecture 6

3. Character of the Accused
Rule 404(a)(1) allows character evidence as follows:
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, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered  by the prosecution;
This applies only to criminal cases, and it allows:
Evidence adduced by the defense to show (good) character on the part of the defendant.
If the defense brings up such evidence, the prosecution may bring up evidence to rebut it (“opening the door”).
Evidence of (good) character may be brought by the prosecution to “rehabilitate” the victim if the victim’s character was attacked by the defense.
Evidence Lecture 6

4. Character of the Alleged Victim
Rule 404(a)(2) allows character evidence as follows:
Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, 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 case to rebut evidence that the alleged victim was the first aggressor.
This allows:
A criminal defendant, in making a self defense claim, to show that the victim’s character was violent so as to help the self-defense claim.
It also allows the prosecution to rebut this evidence.
If the defendant claims self-defense and bring in evidence that s/he has peaceful character, the prosecution may rebut this.
Evidence Lecture 6

5. Character of a Witness
Rule 404(a)(3) allows character evidence as follows:
Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.
This rule (covered in more detail later in the course) allows for certain character evidence designed to impeach the credibility of witnesses.
The evidence must be of a character trait that relates to the honesty of the witness, and not just poor character in general.
Evidence Lecture 6

6. Prior Specific Acts
The same rule generally prohibits evidence of prior acts to prove action in conformity with that trend. Rule 404(b):
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.
The same reasons, as the character evidence rules discussed earlier, apply here as well.
This applies only where the evidence is being used to show actions in conformity with the character traits evinced by the prior acts.
Evidence Lecture 6

7. Exceptions to the Prior Acts Rule
Rule 404(b) specifically allows prior acts to be used to show:
motive
opportunity
intent
preparation
plan
knowledge
identity or
absence of mistake or accident
Evidence Lecture 6

8. Methods of Proving Character
Where allowed under Rule 404(a), character of a person can be proven using the following types of evidence:
Reputation or Opinion as to that person’s character
This can be stated by any person familiar enough to be able to render an opinion
If a person does this, the other party may bring up specific incidents of conduct to counteract the reputation or opinion evidence.
Specific acts
This can only be used to prove character if it related to
“an essential element of a charge, claim, or defense”
Or, of course, specific acts can be introduced under the exceptions in Rule 404(b).
Evidence Lecture 6

9. The “Habit” Rule Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not, and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Although prior acts are generally not admissible to show action in conformity therewith, an exception is made when the prior acts are so frequent and systematic so as to establish that engaging in those acts is a persons’ “habit” or “routine practice”
Evidence Lecture 6

10. Other Types of Evidence Excluded in Article 4
For similar policy reasons, Article 4 of the FRE also prohibits the following evidence from being introduced:
Subsequent Remedial Measures
to avoid discouraging the fixing of dangerous conditions
Compromises or offers to compromise
to avoid discouraging negotiation attempts
Payments of medical and similar expenses
to avoid discouraging these payments
Pleas and pleas discussions
again, to avoid discouraging negotiation
Evidence of Liability Insurance or lack thereof
the jury is supposed to decide the case based on its merits, not whether either side will “really” lose anything
Evidence Lecture 6

11. Special rules in Sex Offense Cases- Rape Shield
To encourage victims to come forward, the federal rules (and many states) prohibit or limit the ability of the defense to bring up the victim’s sexual history.
Rule 412 does not allow the defendant to bring up:
Evidence of prior sexual acts of the victim
Evidence of sexual predisposition of the Defendant
Exceptions: the Defense may prove these thing where:
Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
Evidence the exclusion of which would violate the constitutional rights of the defendant.
Evidence Lecture 6

12. Special rules in Sex Offense Cases - Prior Acts
The federal rules also make wider allowances for bringing up prior acts in:
Criminal prosecutions in sexual abuse cases
Criminal prosecutions in child molestation cases
Civil cases that are based on either of the above
In such cases, the general rule is that evidence of prior similar offenses ARE admissible to prove action in conformity with the prior act.
This applies even where there was no conviction for the prior act!
There are certain notification requirements that require the defendant be given proper notice so as to be able to prepare a rebuttal to the charges of prior acts.
Evidence Lecture 6