Character Evidence Rule (FRE 404)
What is the Character Evidence Rule (FRE 404)?
Evidence of a person's character or character trait is generally not admissible to prove that on a particular occasion the person acted in conformity with that character. Exceptions exist for the accused and victims in criminal cases.
Definition
Federal Rule of Evidence 404(a) embodies one of the most important exclusionary principles in the law of evidence: the general prohibition against using character evidence to prove conduct on a specific occasion. The rule reflects a fundamental policy judgment that the risk of unfair prejudice from character evidence — that jurors will convict a person for being a bad person rather than for committing the charged act — outweighs its probative value in most circumstances.
The rule recognizes several important exceptions in criminal cases. Under FRE 404(a)(2)(A), the accused may offer evidence of a pertinent character trait, and once the accused 'opens the door,' the prosecution may offer rebuttal evidence. Under FRE 404(a)(2)(B), the accused may offer evidence of an alleged victim's pertinent trait, and the prosecution may rebut. In homicide cases where the defendant claims self-defense, the prosecution may offer evidence of the victim's peaceful character regardless of whether the defendant opened the door.
The distinction between character evidence offered to prove conduct (generally prohibited) and character evidence offered for other purposes (often permissible) is critical. Character may be an essential element of a claim or defense in some civil cases, such as defamation or negligent entrustment. The method of proving character also matters: when character evidence is admissible, it may be proved by reputation or opinion testimony under FRE 405(a), but specific instances of conduct are generally limited to cross-examination or cases where character is an essential element.
Key Elements
- 1Evidence of a person's character or character trait is offered
- 2The evidence is offered to prove that the person acted in conformity with that trait on a particular occasion
- 3Such propensity evidence is generally inadmissible under FRE 404(a)(1)
- 4Exception: The accused may offer pertinent character evidence in a criminal case (FRE 404(a)(2)(A))
- 5Exception: The accused may offer pertinent character evidence of the alleged victim (FRE 404(a)(2)(B))
- 6Exception: In homicide self-defense cases, prosecution may offer victim's peaceful character (FRE 404(a)(2)(C))
Landmark Cases
Michelson v. United States
335 U.S. 469 (1948)
Foundational case explaining the rationale for character evidence rules and the limits on cross-examination of character witnesses using specific instances.
Edgington v. United States
164 U.S. 361 (1896)
Early Supreme Court case recognizing the defendant's right to introduce character evidence and the prosecution's right to rebut it.
United States v. Keiser
57 F.3d 847 (9th Cir. 1995)
Clarified that character evidence must be pertinent to the charged offense and that the defendant controls when to open the door.
Cleghorn v. New York Central & Hudson River R.R.
56 N.Y. 44 (1874)
Historical case illustrating the prohibition on character evidence in civil cases to prove negligent conduct.
Exam Tips
- Always ask: Is the character evidence being offered to prove conduct on a specific occasion (propensity), or for some other purpose? Only propensity use is barred.
- Remember the 'mercy rule' — the defendant opens the door first in criminal cases. Once opened, the prosecution can rebut.
- On exams, distinguish FRE 404(a) (character to prove conduct) from FRE 404(b) (other acts for non-propensity purposes) — they are different subsections with different analyses.
Common Mistakes to Avoid
- Assuming character evidence is always inadmissible — the rule has important exceptions for criminal defendants and victims.
- Confusing FRE 404(a) (general ban on propensity evidence) with FRE 404(b) (specific acts for non-propensity purposes like motive, plan, or identity).
- Forgetting that the method of proving character matters under FRE 405 — reputation and opinion on direct; specific instances only on cross-examination or when character is an essential element.
Memory Aid
Character evidence is a 'one-way door' — only the defendant can open it, and once opened, the prosecution walks through.