Relevancy and reasons for excluding relevant evidence - Admissibility of character

Learning Outcomes

This article outlines the rules governing the admissibility of character evidence under the Federal Rules of Evidence. After reading this article, you will be able to identify when character evidence may be relevant, understand the general prohibition against using character evidence to prove conduct, and correctly apply the exceptions that permit the introduction of character evidence in both civil and criminal trials, particularly focusing on the methods of proof and non-propensity uses relevant to the MBE.

MBE Syllabus

For the MBE, you are required to understand the principles governing the admissibility of character evidence. This includes the general bar on using such evidence to prove propensity, the specific exceptions allowed in criminal and civil cases, and the permissible methods for proving character when it is admissible. You should be prepared to:

  • Analyze the general rule (FRE 404(a)) prohibiting character evidence to prove conduct in conformity therewith.
  • Distinguish the rules for admitting character evidence in civil versus criminal proceedings.
  • Identify when character is "in issue" in a civil case, allowing proof by reputation, opinion, and specific acts.
  • Apply the "Mercy Rule" allowing a criminal defendant to offer evidence of a relevant character trait.
  • Understand how a criminal defendant "opens the door" and the prosecution's options for rebuttal.
  • Analyze the rules for admitting evidence of a victim's character in criminal cases, including homicide and sexual assault cases (Rape Shield Law).
  • Differentiate between proving character substantively and using character evidence for impeachment purposes (FRE 608, 609).
  • Recognize exceptions allowing evidence of specific acts for non-propensity purposes (MIMIC rule - FRE 404(b)).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In a civil battery case where the defendant claims self-defense, may the defendant introduce evidence that the plaintiff has a reputation in the community for being a violent person?
    1. Yes, to prove the plaintiff was the first aggressor.
    2. Yes, but only if the defendant was aware of the plaintiff's reputation at the time of the incident.
    3. No, because character evidence is generally inadmissible in civil cases to prove conduct.
    4. No, unless the plaintiff first introduces evidence of the defendant's character for violence.
  2. A defendant is charged with embezzlement. During the defense case, the defendant calls a witness who testifies that, in her opinion, the defendant is an honest person. On cross-examination, the prosecutor asks the witness, "Are you aware that the defendant was disciplined last year for falsifying expense reports at his previous job?" Is this question permissible?
    1. Yes, because the defendant opened the door to character evidence.
    2. Yes, because specific acts are admissible to prove character on cross-examination.
    3. No, because specific acts are inadmissible to prove character.
    4. No, because the prosecutor may only rebut with reputation or opinion evidence of dishonesty.
  3. Evidence of a defendant's prior crime is offered by the prosecution in a criminal case. Under which theory is this evidence most likely admissible?
    1. To show the defendant has a propensity to commit crimes.
    2. To show the defendant's motive for committing the charged crime.
    3. To impeach the defendant's character for truthfulness before the defendant testifies.
    4. To show the defendant's bad character once the defendant introduces evidence of good character.
  4. In which of the following civil actions is character evidence regarding a party most likely to be admissible as substantive evidence?
    1. A negligence action where the plaintiff seeks to prove the defendant is usually careless.
    2. A breach of contract action where the defendant's honesty is questioned.
    3. A defamation action where the defendant pleads truth as a defense, asserting the plaintiff is a liar.
    4. A strict products liability action focusing on the manufacturer's quality control.

Introduction

Evidence law generally restricts the use of a person's character traits to prove how that person likely acted during the events central to the litigation. This restriction, often termed the propensity rule, is fundamental. While a person's character might seem relevant to predicting their behavior, the rules deem this type of inference too prejudicial and potentially misleading for the jury. However, the exclusion is not absolute. Several important exceptions exist, particularly in criminal cases, and character evidence is admissible for purposes other than proving propensity, such as impeachment or when character itself is an essential element of a claim or defense. Understanding these nuances is critical for the MBE.

Key Term: Character Evidence Evidence concerning a person's general disposition or tendency regarding a particular trait (e.g., peacefulness, honesty, violence).

Key Term: Propensity Rule The general rule, codified in FRE 404(a), that 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.

General Rule and Methods of Proof

FRE 404(a)(1) states the basic rule: "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." This rule applies in both civil and criminal cases. The primary concern is that jurors might give undue weight to character evidence, deciding the case based on the person's perceived general character rather than the specific facts of the event in question.

When character evidence is admissible (either because character is "in issue" or via an exception), FRE 405 dictates the permissible methods of proof:

  1. Reputation: Testimony about the person's reputation for the relevant trait in a particular community (e.g., place of work or residence).
  2. Opinion: Testimony in the form of an opinion about the person's character for the relevant trait by a witness with sufficient personal knowledge.
  3. Specific Instances of Conduct: Evidence of specific acts is generally not allowed to prove character circumstantially. However, specific acts are admissible:
    • On cross-examination of a character witness (either reputation or opinion).
    • When character or a trait of character is an essential element of a charge, claim, or defense.

Key Term: Reputation Testimony Testimony about what others in the person's community generally think about that person's relevant character trait.

Key Term: Opinion Testimony Testimony based on the witness's own perception and belief about the person's relevant character trait.

Key Term: Specific Acts Evidence Evidence detailing particular past actions of a person, offered either to prove character (rarely allowed) or for a non-propensity purpose (MIMIC).

Character Evidence in Civil Cases

The propensity rule is applied strictly in civil cases. Character evidence is generally inadmissible to prove that a person acted in conformity with a character trait on a specific occasion.

Example: In a negligence action arising from a car accident, the plaintiff cannot introduce evidence that the defendant has a reputation for being a reckless driver to prove the defendant drove recklessly at the time of the accident. Similarly, the defendant cannot introduce evidence of his own reputation for careful driving.

Exception: Character "In Issue"

Character evidence is admissible in a civil case if a person's character trait is itself an essential element of a charge, claim, or defense. This is rare.

  • Examples:

    • Defamation: If the defendant pleads truth as a defense to a claim that they called the plaintiff a "thief," the plaintiff's character for honesty is directly in issue.
    • Negligent Entrustment/Hiring: The character of the person entrusted (e.g., their recklessness or incompetence) is an element of the claim against the person who did the entrusting/hiring.
    • Child Custody: A parent's character (fitness) is central to the determination.

  • Method of Proof: When character is directly in issue, it may be proved by reputation, opinion, and specific instances of conduct (FRE 405(b)).

Character Evidence in Criminal Cases

The rules are more complex in criminal trials, primarily offering protections to the defendant.

Defendant's Character: The "Mercy Rule" (FRE 404(a)(2)(A))

The prosecution cannot initiate the introduction of evidence concerning the defendant's bad character to show propensity (i.e., that the defendant is the type of person who would commit the crime charged).

However, the defendant is permitted to "open the door" by offering evidence of their own relevant good character trait. This is often called the "Mercy Rule."

  • Relevant Trait: The character evidence offered must relate to the crime charged (e.g., evidence of peacefulness in an assault case, evidence of honesty in a fraud case).
  • Method: The defendant must offer this evidence through reputation or opinion testimony, not specific acts.

Key Term: Mercy Rule The exception allowing a criminal defendant to introduce evidence of their own relevant good character trait to suggest they are unlikely to have committed the charged crime.

Key Term: Opens the Door A phrase indicating that a party (usually the defendant in character evidence context) has introduced evidence on a topic, thereby allowing the opposing party to introduce rebuttal evidence on the same topic that might otherwise have been inadmissible.

Prosecution's Rebuttal

If the defendant "opens the door" by offering evidence of good character, the prosecution may rebut in two ways:

  1. Cross-Examination: The prosecutor may cross-examine the defendant's character witness regarding their knowledge of relevant specific instances of the defendant's conduct. This tests the witness's familiarity with the defendant's reputation or the basis for their opinion. The prosecutor must have a good-faith basis for the inquiry and cannot introduce extrinsic evidence to prove the specific act if the witness denies knowledge.
  2. Rebuttal Witnesses: The prosecutor may call its own witnesses to provide reputation or opinion testimony about the defendant's bad character for the same trait raised by the defendant.

Worked Example 1.1

David is on trial for battery. He calls Wendy to testify that David has a reputation in their community for being a peaceful and non-violent person. On cross-examination, may the prosecutor ask Wendy, "Have you heard that David was arrested for assault three years ago?"

Answer: Yes. David has "opened the door" by offering evidence of his good character for peacefulness (a relevant trait). The prosecutor may now cross-examine Wendy about her knowledge of specific instances of David's conduct relevant to peacefulness (like an assault arrest) to test the basis and credibility of her reputation testimony. The prosecutor must have a good-faith basis for the question.

Victim's Character (FRE 404(a)(2)(B) & (C))

  • Defendant's Initiative: A criminal defendant may offer reputation or opinion evidence about the victim's character trait when it is relevant to the defense asserted (most commonly, the victim's character for violence in a self-defense claim).

  • Prosecution's Rebuttal: If the defendant introduces evidence of the victim's bad character trait, the prosecution may:

    1. Offer reputation or opinion evidence to rebut regarding the victim's good character for that same trait.
    2. Offer reputation or opinion evidence regarding the defendant's bad character for that same trait.

  • Homicide Case Exception: In a homicide case, if the defendant offers any evidence (not necessarily character evidence) that the victim was the first aggressor, the prosecution may offer reputation or opinion evidence of the victim's character for peacefulness.

  • Rape Shield Law (FRE 412): Special rules severely limit the admissibility of evidence about a victim's sexual behavior or predisposition in cases involving alleged sexual misconduct. Generally, such evidence is inadmissible in both criminal and civil cases, with very narrow, specific exceptions (e.g., to prove the source of semen, or prior sexual conduct between the victim and the accused to show consent in a criminal case).

Specific Acts for Non-Propensity Purposes (FRE 404(b))

While FRE 404(a) bars character evidence for propensity, FRE 404(b) allows evidence of a defendant's prior specific crimes, wrongs, or acts if offered for a non-propensity purpose. This evidence is admissible to prove:

  • Motive
  • Intent
  • Absence of Mistake (or accident)
  • Identity (e.g., unique modus operandi)
  • Common plan or scheme
  • (Also: opportunity, preparation, knowledge)

This is often called the MIMIC rule.

  • Notice: In a criminal case, the prosecution must provide reasonable notice before trial (or during trial for good cause) of the general nature of any such evidence it intends to introduce.
  • Balancing Test: Even if offered for a MIMIC purpose, the evidence must still survive the FRE 403 balancing test (probative value not substantially outweighed by the danger of unfair prejudice, confusion, etc.).

Key Term: MIMIC Rule An acronym representing common non-propensity purposes for which evidence of prior specific acts may be admissible under FRE 404(b): Motive, Intent, absence of Mistake, Identity, Common plan or scheme.

Worked Example 1.2

Defendant is charged with bank robbery. The robber wore a distinctive purple ski mask. The prosecution offers testimony that Defendant robbed another bank two weeks earlier wearing an identical purple ski mask. Is this evidence admissible?

Answer: Yes, likely admissible under FRE 404(b) for the non-propensity purpose of proving identity, assuming the use of the distinctive mask constitutes a unique modus operandi attributable to the defendant. The court must still apply the FRE 403 balancing test.

Character Evidence for Impeachment

Evidence relating to a witness's character for truthfulness or untruthfulness is admissible to impeach or support the witness's credibility under FRE 608 (Reputation/Opinion/Specific Acts on Cross) and FRE 609 (Prior Criminal Convictions). This use is distinct from using character evidence to prove conduct on a particular occasion under FRE 404/405.

Exam Warning

Exam Warning: Carefully distinguish between character evidence offered substantively under FRE 404/405 (usually to prove conduct, subject to propensity bar and exceptions) and character evidence offered for impeachment under FRE 608/609 (to attack/support witness credibility). The rules differ significantly.

Revision Tip

Revision Tip: Create a flowchart or table summarizing the character evidence rules: Civil vs. Criminal, Defendant vs. Victim, Purpose (Propensity vs. Non-Propensity vs. Impeachment), and Methods of Proof (Rep/Op/Specific Acts).

Key Point Checklist

This article has covered the following key knowledge points:

  • Character evidence generally cannot be used to prove a person acted in conformity with that character (propensity rule).
  • In civil cases, character evidence is admissible only if character is an essential element of a claim or defense (proven by Rep/Op/Specific Acts).
  • In criminal cases, the defendant can offer evidence of a relevant good character trait (Mercy Rule) via Rep/Op testimony.
  • If the defendant offers character evidence, the prosecution can rebut with Rep/Op evidence and cross-examine the defendant's witness about relevant specific acts.
  • A criminal defendant can offer Rep/Op evidence of a victim's relevant trait (e.g., violence); the prosecution can rebut.
  • In homicide cases, prosecution can offer victim's peacefulness character if defendant claims victim was first aggressor.
  • Rape Shield Laws (FRE 412) heavily restrict evidence of an alleged victim's sexual behavior/predisposition.
  • Specific acts are admissible for non-propensity purposes like Motive, Intent, absence of Mistake, Identity, or Common plan (MIMIC rule - FRE 404(b)).
  • Character evidence regarding truthfulness is admissible to impeach witnesses (FRE 608/609).

Key Terms and Concepts

  • Character Evidence
  • Propensity Rule
  • Reputation Testimony
  • Opinion Testimony
  • Specific Acts Evidence
  • Mercy Rule
  • Opens the Door
  • MIMIC Rule
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