Federal Rules of Evidence - Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

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The Rule

(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, 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;

(2) 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;

(3) Character of witness - Evidence of the character of a witness, as provided in Rule 607, Rule 608, and Rule 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The Exceptions

Although character evidence and similar crimes evidence is generally inadmissible, a number of exceptions have been recognized over the years. These were later codified in section B of rule 404. These include motive, opportunity, intent, preparation, plan, identity and absence of mistake or accident.

Evidence offered under one of these exceptions must still be analyzed to determine whether the probative value outweights the prejudicial effect of the evidence. Rule 403. Because a genuine issue can usually not be identified until after the defense presented its case, 404(b) evidence is typically offered in rebuttal.

Other Important Rules

  • Huddleston v. United States, 485 U.S. 681 (1988). Evidence of bad acts is only relevant if it actually occured. Before Huddeston, there was a split among the circuits as to what level of proof was required to make character evidence admissible at trial. In Huddelsteon v. United States, the United States Supreme Court held that in order for character evidence to be admissible at trial, a judge must make a preliminary determination that there is
  1. Sufficient admissible evidence
  2. for a reasonable jury
  3. to conclude by a preponderance (rather than beyond a reasonable doubt or clear and convincing standards)
  4. that act occured

Character Evidence Flow Chart


See Federal Rules of Evidence