Character Evidence

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Character evidence is a fertile area for both prosecutors and criminal defense attorneys. Character evidence is sometimes also called "propensity evidence." The danger of character evidence is well known as factfinders often overvalue character evidence during their deliberations. As a result, in the United States, the admissibility of character evidence is subject to a complex web of common law and statutory rules intended to decrease the prejudicial impact of this kind of evidence.

The danger of character evidence is that the factfinder will convict the defendant because they are a "bad person" or that they have committed similar crimes in the past rather than focusing on the prosecution's burden to prove the case against the defendant.

Character evidence takes several forms.

  • Prior Bad Acts
  • Prior Criminal Convictions
  • Reputation Evidence
  • Opinion Evidence

A criminal defense lawyer should always remember that evidence of bad acts are only relevant if they actually occurred.[1]

Country Specific Applications

United States

Under Federal Rule of Evidence 404 "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."[2] Such evidence may be offered for several other reasons:to prove motive, opportunity, intent, preparation, plan, identity, absence of mistake or accident.

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.

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.

Evidence of bad acts are only relevant if they actually occurred. 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 occurred[3]

Character Evidence Flow Chart for US Federal Courts


See Federal Rules of Evidence


  1. Huddleston v. United States, 485 U.S. 681 (1988)
  2. Federal Rule of Evidence 404
  3. Huddleston v. United States, 485 U.S. 681 (1988)