Black-letter propositions
- 01
A criminal defendant may offer a pertinent trait and may offer a victim's pertinent trait, opening defined prosecution rebuttal.
- 02
Reputation or opinion is ordinarily the direct method for propensity; cross-examination can test basis with specific acts.
- 03
When character is an essential element, reputation, opinion, and specific acts are available.
- 04
Civil propensity evidence remains generally barred except specialized sexual-misconduct provisions.
- 05
A homicide prosecution may offer the victim's peacefulness to rebut evidence that the victim was first aggressor.
Use this attack sequence under time
Frame the issue
Identify purpose: propensity, element, impeachment, or another theory.
Resolve the next checkpoint
Identify case type and who opened the door.
Resolve the next checkpoint
Select pertinent trait and permitted proof method.
Finish the conclusion
Apply foundation and Rule 403.
Common wrong turns
- A defendant does not open character merely by testifying.
- Specific acts are not the ordinary direct method for propensity.
- Knowledge of a victim's acts may prove the defendant's state of mind rather than victim propensity.
Worked example
An assault defendant calls a neighbor to give an opinion that the defendant is peaceful.
Peacefulness is pertinent and opinion testimony is permitted. The prosecution can rebut and, in good faith, ask the witness about relevant incidents to test the opinion's basis.
Practice this topic
The general bar and its exceptions
Rule 404(a)(1) says evidence of a person's character or trait is not admissible to prove that on a particular occasion the person acted in accordance with it. In a criminal case, a defendant may offer evidence of a pertinent trait, and if admitted the prosecutor may rebut it. A defendant may offer a pertinent trait of an alleged victim, subject to Rule 412, and the prosecutor may then rebut and offer the defendant's same trait.
In a homicide case the prosecutor may offer evidence of the victim's peacefulness to rebut evidence that the victim was the first aggressor. Rule 404(a)(3) says a witness's character may be admitted under Rules 607, 608 and 609.
How character may be proved
Rule 405(a) says that when character evidence is admissible it may be proved by reputation or opinion testimony, and on cross-examination the court may allow inquiry into relevant specific instances of conduct. Rule 405(b) allows proof by specific instances only when character is an essential element of a charge, claim or defense.
Rule 404(a)(2)(B) is subject to the limitations in Rule 412. It also carries a built-in cost. Once a defendant offers a pertinent trait of the alleged victim and it is admitted, the prosecutor may both rebut it and offer evidence of the defendant's same trait. Decide before offering a trait whether that response is worth the risk.
Frequently asked questions
What is the controlling rule for propensity and character methods?+
Propensity character is generally barred, but a criminal accused may open the door with a pertinent trait through the permitted method.
How should I analyze propensity and character methods on the bar exam?+
Select pertinent trait and permitted proof method. Apply foundation and Rule 403.
Can character evidence show that a person acted in accordance with it?+
Not generally. Rule 404(a)(1) says character evidence is not admissible to prove that on a particular occasion the person acted in accordance with the trait, subject to listed exceptions.
What can a criminal defendant offer about character?+
Evidence of the defendant's pertinent trait, and if it is admitted the prosecutor may offer evidence to rebut it, under Rule 404(a)(2)(A).
How may admissible character be proved?+
By testimony about reputation or in the form of an opinion, according to Rule 405(a), with cross-examination allowed into relevant specific instances.
When may specific instances of conduct prove character?+
When character or a trait is an essential element of a charge, claim or defense, under Rule 405(b).
What can a prosecutor offer in a homicide case about the victim?+
Evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor, under Rule 404(a)(2)(C).