Relevancy and reasons for excluding relevant evidence - Character and related concepts

Learning Outcomes

This article examines the rules governing the admissibility of character evidence in federal court. You will learn the general prohibition against using character evidence to prove conduct in conformity therewith, the exceptions for criminal defendants and victims, the specific rules for civil cases where character is an essential element, the permissible non-propensity uses of prior bad acts (MIMIC rule), and the distinct concept of habit evidence. This knowledge is essential for analyzing Evidence questions on the MBE.

MBE Syllabus

For the MBE, you are required to understand the principles controlling the admission and exclusion of character evidence. This includes its general inadmissibility for propensity and the specific exceptions and alternative uses. You should be prepared to:

  • Identify the general rule prohibiting character evidence to prove conduct on a specific occasion (propensity).
  • Apply the exceptions allowing a criminal defendant to offer evidence of their own relevant trait or the victim's relevant trait (Mercy Rule).
  • Analyze the prosecution's permitted methods of rebuttal once the defendant "opens the door."
  • Recognize when character evidence is admissible in civil cases because character is an essential element of a claim or defense.
  • Distinguish permissible non-propensity uses of prior bad acts (MIMIC evidence) from impermissible character evidence.
  • Differentiate character evidence from habit evidence and understand the admissibility standard for habit.
  • Understand the basic principles of Rape Shield laws (FRE 412) and the rules for similar acts in sexual assault/child molestation cases (FRE 413-415).

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 federal trial for assault, the Defendant calls a witness to testify that the Defendant has a reputation in the community for peacefulness. This testimony is:
    1. Admissible to show the Defendant likely acted peacefully on the occasion in question.
    2. Admissible only if the Defendant first testifies.
    3. Inadmissible character evidence.
    4. Inadmissible because it is opinion testimony.
  2. Plaintiff sues Driver for negligence after a car accident. Plaintiff seeks to introduce evidence that Driver received speeding tickets on two separate occasions within the last year. This evidence is most likely:
    1. Admissible as habit evidence.
    2. Admissible to show Driver has a character for speeding.
    3. Inadmissible because character evidence is not allowed in civil cases.
    4. Inadmissible to prove Driver was speeding at the time of the accident, but potentially admissible for another purpose if relevant.
  3. Defendant is charged with bank robbery. The prosecution seeks to introduce evidence that the Defendant committed another bank robbery six months prior using the same distinctive disguise (a clown mask and a specific getaway car). This evidence is:
    1. Admissible to show the Defendant has a propensity for robbing banks.
    2. Admissible to prove identity.
    3. Inadmissible character evidence.
    4. Inadmissible unless the Defendant first introduces evidence of good character.

Introduction

Evidence must be relevant to be admissible. Relevant evidence is evidence having any tendency to make a fact of consequence more or less probable than it would be without the evidence [FRE 401, 402]. However, even relevant evidence may be excluded if its probative value is substantially outweighed by dangers like unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time [FRE 403].

A specific application of this principle involves character evidence. Generally, evidence of a person's character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait [FRE 404(a)(1)]. This is often called the "propensity rule" – evidence cannot be used simply to show a person has a propensity or tendency to act a certain way. The rationale is that such evidence carries a high risk of unfair prejudice (the jury might convict someone based on past character rather than evidence of the current crime) and may distract the jury. However, there are important exceptions and alternative uses, particularly in criminal cases, and specific rules apply when character itself is an essential element of a case.

Key Term: Character Evidence Evidence of a person's general disposition or propensity, typically offered to suggest that the person acted in conformity with that character on a specific occasion.

Exceptions to the Propensity Rule in Criminal Cases

FRE 404(a)(2) outlines key exceptions where character evidence is admissible in criminal cases, primarily initiated by the defendant.

Defendant's Character (The "Mercy Rule")

A defendant in a criminal case is permitted to introduce evidence of their own relevant character trait [FRE 404(a)(2)(A)]. This is often called the "Mercy Rule."

  • Relevant Trait: The character trait offered must be relevant to the crime charged. For example, evidence of peacefulness is relevant in an assault case, while evidence of honesty is relevant in a fraud case.
  • Method of Proof: If admissible, the defendant's character may only be proven by reputation or opinion testimony [FRE 405(a)]. Specific instances of conduct are not allowed on direct examination.
  • Opening the Door: Once the defendant offers such evidence, they are said to have "opened the door." The prosecution may then rebut this evidence.

Prosecution's Rebuttal of Defendant's Character

If the defendant offers evidence of their good character under the Mercy Rule, the prosecution can:

  1. Cross-Examine: Cross-examine the defendant's character witness regarding their knowledge of relevant specific instances of the defendant's conduct [FRE 405(a)]. The purpose is to test the witness's familiarity and standards. The prosecutor must have a good faith basis for the inquiry and cannot prove the specific act with extrinsic evidence if the witness denies knowledge.
  2. Offer Rebuttal Witnesses: Call its own witnesses to provide reputation or opinion testimony about the defendant's bad character for the same trait [FRE 404(a)(2)(A), 405(a)].

Victim's Character

A criminal defendant may offer reputation or opinion evidence of the victim's relevant character trait [FRE 404(a)(2)(B)]. This most commonly arises in self-defense cases, where the defendant offers evidence of the victim's character for violence to suggest the victim was the first aggressor.

  • Method of Proof: As with defendant's character, this is limited to reputation or opinion testimony on direct [FRE 405(a)].

Prosecution's Rebuttal of Victim's Character

If the defendant offers evidence of the victim's bad character trait, the prosecution may:

  1. Offer reputation or opinion evidence of the victim's good character for the same trait [FRE 404(a)(2)(B)(i), 405(a)]; AND
  2. Offer reputation or opinion evidence of the defendant's bad character for the same trait [FRE 404(a)(2)(B)(ii), 405(a)].

Homicide Cases

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 trait for peacefulness [FRE 404(a)(2)(C)].

Worked Example 1.1

David is charged with assaulting Victor. David claims self-defense, arguing Victor attacked him first. David calls Wendy to testify that Victor has a reputation in their community for being a violent and aggressive person. Can the prosecution respond by calling Xavier to testify that David has a reputation for violence?

Answer: Yes. By offering evidence of Victor's (the victim's) character for violence, David has "opened the door." Under FRE 404(a)(2)(B)(ii), the prosecution may now offer evidence of David's (the defendant's) character for the same trait (violence). Xavier's reputation testimony is a permissible method under FRE 405(a).

Character Evidence in Civil Cases

The general rule prohibiting character evidence for propensity applies equally in civil cases [FRE 404(a)(1)]. There is no equivalent "Mercy Rule" allowing a civil defendant to introduce evidence of good character.

Character as an Essential Element

Character evidence is admissible in a civil case if a person's character trait is an essential element of a charge, claim, or defense [FRE 404(a)(3), 405(b)]. This is rare.

  • Examples:
    • Defamation: Where truth is asserted as a defense, the plaintiff's character for the trait described (e.g., honesty) is in issue.
    • Negligent Entrustment/Hiring: The character of the person entrusted (e.g., for recklessness) or hired (e.g., for violence) is an essential element of the claim against the entrustor/employer.
    • Child Custody: A parent's character (e.g., fitness) is an essential element.
  • Method of Proof: When character is an essential element, it may be proved by reputation testimony, opinion testimony, and specific instances of conduct [FRE 405(b)].

Exceptions for Non-Propensity Purposes (MIMIC Rule)

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. However, this evidence may be admissible for another purpose [FRE 404(b)]. This is often remembered by the acronym MIMIC:

  • Motive: Why the defendant committed the act.
  • Intent: To show the defendant acted intentionally or knowingly, not accidentally or mistakenly.
  • Mistake (absence of): To rebut a claim of mistake or accident.
  • Identity: To prove the defendant committed the crime because it bears their unique signature (modus operandi) or because the prior act connects them to the current crime (e.g., stole the getaway car).
  • Common plan or scheme: To show the charged crime was part of a larger plan or scheme.

Key Term: MIMIC Rule Refers to the non-propensity purposes for which evidence of prior crimes, wrongs, or acts may be admissible under FRE 404(b), such as Motive, Intent, absence of Mistake, Identity, or Common plan or scheme.

  • Notice Requirement: In a criminal case, the prosecution must provide reasonable notice of the general nature of any such evidence it intends to offer at trial, unless the court excuses pretrial notice for good cause [FRE 404(b)(3)].
  • Balancing Test: Even if offered for a valid MIMIC purpose, the evidence must still survive the FRE 403 balancing test (probative value not substantially outweighed by unfair prejudice, etc.).

Worked Example 1.2

Defendant is charged with arson for allegedly burning down his failing business to collect insurance money. Defendant claims the fire was accidental. The prosecution seeks to introduce evidence that Defendant's previous two businesses also burned down under suspicious circumstances shortly after Defendant took out large fire insurance policies. Is this evidence likely admissible?

Answer: Yes, likely admissible. While inadmissible to show Defendant has a propensity for arson, the evidence is relevant for non-propensity purposes under FRE 404(b). It tends to show Intent (not accidental), Motive (financial gain through insurance), absence of Mistake/accident, and possibly a Common plan or scheme. The court would still need to apply the FRE 403 balancing test.

Habit Evidence

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice [FRE 406].

Key Term: Habit Evidence Evidence of a person's regular, specific, semi-automatic response to a repeated specific situation.

  • Distinguished from Character: Habit is more specific and reflexive than character. Character describes a general disposition ("careful driver"), while habit describes a regular response to a specific situation ("always stops fully at that particular stop sign," "always takes the stairs two at a time").
  • Admissibility: Habit evidence is admissible to prove conduct in conformity therewith, without needing corroboration or eyewitnesses.

Sexual Misconduct Evidence

Special rules govern evidence of sexual behavior.

Victim's Sexual Behavior or Predisposition (Rape Shield Law)

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove a victim's sexual behavior or predisposition is generally inadmissible [FRE 412].

Key Term: Rape Shield Law A rule (like FRE 412) that generally prohibits the admission of evidence concerning an alleged victim's past sexual behavior or predisposition in cases involving sexual misconduct.

  • Criminal Case Exceptions: Specific instances of the victim's sexual behavior are admissible only to prove:
    • Someone other than the defendant was the source of semen, injury, or other physical evidence.
    • Past sexual behavior between the victim and the defendant, if offered by the defendant to prove consent or by the prosecution for any purpose.
    • Evidence whose exclusion would violate the defendant's constitutional rights (e.g., Confrontation Clause).
  • Civil Case Exception: Evidence of the victim's sexual behavior or predisposition is admissible only if its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party. Evidence of reputation is admissible only if the victim has placed it in controversy.

Defendant's Similar Crimes in Sexual Assault and Child Molestation Cases

In a criminal case where the defendant is accused of sexual assault or child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible and may be considered on any matter to which it is relevant, including propensity [FRE 413, 414].

In a civil case where a claim for relief is based on the defendant's alleged sexual assault or child molestation, evidence of the defendant's commission of any other sexual assault or child molestation is admissible [FRE 415].

  • Note: These rules represent a significant exception to the general prohibition against propensity evidence under FRE 404.

Exam Warning

Do not confuse the narrow exceptions allowing character evidence (Mercy Rule, character as an element) or the MIMIC rule (non-propensity use of prior acts) with the general prohibition against using character to prove conduct in conformity therewith. Always ask: Why is this evidence being offered? Is it to show propensity, or something else?

Key Point Checklist

This article has covered the following key knowledge points:

  • Character evidence is generally inadmissible to prove conduct in conformity therewith (propensity).
  • A criminal defendant can initiate evidence of their own relevant good character (reputation/opinion only).
  • If the defendant offers character evidence, the prosecution can rebut via cross-examination (including specific acts) and rebuttal witnesses (reputation/opinion only).
  • A criminal defendant can offer evidence of the victim's relevant character trait (reputation/opinion only), opening the door for prosecution rebuttal.
  • In homicide cases, evidence of the victim's peacefulness is admissible to rebut any evidence the victim was the first aggressor.
  • Character evidence is admissible in civil cases only when character is an essential element of a claim/defense (provable by reputation, opinion, or specific acts).
  • Prior bad acts (MIMIC evidence) are admissible for non-propensity purposes like motive, intent, absence of mistake, identity, or common plan.
  • Habit evidence (specific, regular response) is admissible to prove conduct in conformity therewith.
  • Rape Shield laws (FRE 412) strictly limit evidence of an alleged victim's past sexual behavior/predisposition.
  • Special rules (FRE 413-415) allow evidence of a defendant's other sexual assaults/child molestations in cases involving such conduct, even for propensity.

Key Terms and Concepts

  • Character Evidence
  • MIMIC Rule
  • Habit Evidence
  • Rape Shield Law
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