Character Evidence Exceptions in Criminal Cases
Federal Rule 404(2) allows a defendant in a criminal case to introduce evidence of his own “pertinent character trait,” which allows criminal defendants to bring witnesses as to good character. A pertinent trait is a characteristic that relates to either the crime or a defense to the crime. For example, in a fraud case, the criminal defendant is may call witnesses to testify that he’s an honest person. In a trial for a violent crime such as homicide, battery, or assault, he may bring witnesses to testify that he’s a peaceful person.
Note, though, that the character evidence still must be relevant. In United States v. Navedo-Ramirez, a police officer was charged with drug and gun possession. During her defense, she sought to introduce her police department performance evaluations to show her “general competence at her job as a police officer.” The court didn’t allow this character evidence to be admitted, reasoning that the character trait wasn’t pertinent to the drug and gun possession crimes with which she was charged.
Trial courts also retain power to limit the scope of the proof by limiting the number of witnesses who can testify, or the way proof of character is adduced.
Once the defendant introduces evidence of a “good” character trait, the government may introduce pertinent character evidence to rebut the defendant’s character evidence. The defendant’s raising character evidence is thus sometimes referred to as “opening the door” to the use of character evidence against him. As Justice Robert H. Jackson wrote in the seminal Supreme Court decision Michelson v. United States, “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”
If the defendant does not open the door by making his character an issue, the government cannot bring character evidence. For example, in United States v. Tran Trong Cuong, wherein the defendant was charged with illegally prescribing drugs, the federal prosecutor asked one of the doctor’s patients, “Is it fair to say that [the defendant] had a reputation in the community for being an easy source of drugs?” Because the defendant had never introduced character evidence regarding his reputation, the appellate court held that the witness’s testimony violated Rule 404 and the question was improper.
Rule 404(a)(2) also permits the criminal defendant to introduce evidence of a pertinent character trait of the victim. This exception allows defendants in homicide or assault cases to show the victim’s character trait of violence or aggression to support the defendant’s claim of self-defense.
Note that in both cases, character evidence can be established by testimony as to the “reputation” of the subject or the “opinion” of the witness. The party may not use evidence of specific instances of conduct to show that the person was more likely to act in a similar manner  unless an exception applies under Rule 404(b), which we turn to next.
Crimes, Wrongs, or Other Acts for Non-Character Purposes
Just as character evidence is generally not allowed, 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, Rule 404(b)(2) provides exceptions where the evidence is offered for purposes other than to prove character. The rule provides nine permitted non-character uses for introducing crimes or prior bad acts: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake and lack of accident. If the prosecutor wants to provide past act evidence for one of the allowed purposes, she may be required to provide reasonable notice to the defense that she intends to do so. A court may also require her to describe the general nature of the past act evidence and justify the reasoning behind seeking its admission.
Let’s look at some examples to illustrate when prior acts may be used for these enumerated purposes under Rule 404(b).
In Harris v. Barone, the plaintiff was an inmate at a prison who sued the prison for unreasonably keeping him confined to his cell for 82 days. The defense wanted to enter evidence of past instances when the plaintiff acted out, thus requiring discipline and special confinement. The plaintiff objected that evidence of the prior acts was inadmissible character evidence. However, the court allowed the evidence, ruling that the evidence was relevant to show the prison’s security guards’ motive for confining the plaintiff the way they did.
In United States v. Slaughter, a defendant convicted of firearms possession appealed the admission of evidence relating to two other episodes where he possessed firearms and ammunition. The appellate court ruled that the evidence of prior possession of a weapon was relevant to prove that the defendant had an opportunity to be in possession of firearms in the present case, and so was admissible.
In United States v. Moran, Moran was charged with possession of a firearm as a felon, which requires that the defendant do so “knowingly.” The government introduced that Moran had been previously convicted of the same crime. Because Moran claimed that he did not know the weapon was in his car, the court allowed the prior conviction to be admitted to prove that the defendant knew that he had the weapon.
“Identity” is sometimes proven by showing that the crime was committed in a manner that is consistent with the defendant’s modus operandi (often referred to by its initials, “M.O.”). For example, if someone’s on trial for robbing a liquor store and the prosecution wants to show that the person had robbed a liquor store in the past, that’s inadmissible character evidence. But if the person is on trial for robbing a liquor store while wielding a Mossberg 500 shotgun and wearing a Richard Nixon mask and blue overalls on a Thursday evening at 10 PM and the prosecution wants to show that the defendant was responsible for three previous liquor store robberies, all around 10 PM on Thursdays and all wielding Mossberg 500 shotguns and wearing Richard Nixon masks and blue overalls, this would likely be admissible. The prosecution is not merely trying to show the defendant’s character. It is showing that this is the defendant’s modus operandi, and thus that the person on the security footage wielding a Mossberg 500 shotgun and wearing a Richard Nixon mask and blue overalls was likely the defendant. It is being used to show his identity, not his character.
Methods of Proving Character
While Rule 404 governs when character evidence is admissible, Rule 405 governs how it is proved when allowed.
Rule 405 identifies three methods of proving character. The first method is through a witness’s testimony as to the person’s reputation for a trait within the community. The second method is through a witness with personal knowledge who can provide an opinion on a person’s pertinent character trait. Third, a witness can testify about specific instances of the person’s conduct from which a trier of fact can infer character. This last method is allowed only when character is “in issue” and is an essential element of a charge or claim.
“Reputation” is the general community’s outlook or view of a person. For a witness to be allowed to testify about another’s reputation, there are several criteria that must be satisfied. First, the witness must first explain the foundation for her testimony. In other words, she’ll need to explain how she knows the person’s reputation and explain the connection to the relevant community. For example, in United States v. Oliver, the court determined that a person’s dorm roommates are appropriate sources of a person’s reputation on a college campus. The dormmates were acquainted with the college community because they lived on campus. They also knew of the victim’s reputation through these interactions. Second, the reputation testimony must relate to a time that is contemporaneous with the events at issue in the litigation.
The second method of proving character is for a witness to testify as to his opinion of the person. Witnesses testifying as to their opinions must lay the foundation for the opinions, meaning that the witness must explain how she knows the person and establish that she’s sufficiently familiar with the person whose character is being proved. For example, in United States v. Gil, the defendant’s character witness was not allowed to testify even though the witness had known the defendant’s family for 20 years. Since it was not established that he had interacted with the defendant herself, the trial court was justified in excluding the opinion testimony.
Finally, let’s look at proving character through specific instances of a person’s conduct. Specific acts are admissible to prove character only when character is an element of the claim, charge, or defense. For example, assume a victim of a car accident files an action against a cab company for employing an incompetent driver. If the cab driver is an alcoholic, then his character is directly in issue and the victim can introduce evidence of his specific prior incidents of drunk driving to prove the negligence of hiring him as a cab driver. But if the driver’s past actions were stealing money, that would not be admissible. While it’s arguably negligent to hire a cab driver who has a record of theft, that has little or no bearing on the accident and injury in question.
Evidence Barred for Public Policy Reasons
The Federal Rules of Evidence lay out specific rules for certain types of evidence that are not admissible even though they are relevant. These types of evidence are barred to protect or promote public policy. Let’s look at a few of these
Subsequent Remedial Measures
After a harmful event occurs, a person will sometimes act to ensure that the harmful event doesn’t recur. This is called a subsequent remedial measure and it isn’t admissible in court to prove negligence, blameworthiness, a defective product or design, or the need for a warning or instruction.  The purpose behind this rule is to avoid discouraging subsequent remedial measures. It’s beneficial for society if an owner or manufacturer takes steps to prevent the occurrence of similar accidents or injuries in the future. Companies would be less likely to effect remedial measures if such actions could then be used against them.
Offer to Compromise
Like subsequent remedial measures, offers to compromise cannot be used to prove or disprove the validity or amount of a claim. For something to qualify as an inadmissible offer to compromise, two requirements must be met. First, there must be a claim of liability. This claim can be a formal judicial claim or an informal claim. The second requirement is that there be some dispute about the validity of the claim or amount due. This can also be formal, such as a judicial response to the complaint, or informal. Any offer to compromise when these requirements are met is deemed inadmissible under Rule 408. It is beneficial for people to compromise and try to negotiate simple disputes out of the courtroom to maintain judicial efficiency. Allowing compromise negotiations to be used against a party would discourage negotiations.
Offer to Pay Medical Expenses
Under Rule 409, offers to pay medical expenses for an injury are not admissible to prove liability for an injury. This rule allows civil defendants to limit the potential damages they may incur. This rule encourages people to pay injury-related expenses (and hopefully obviate the need for the lawsuit) by removing the fear of the judicial repercussions.
Whether a party is insured is not admissible to prove or disprove wrongful conduct. This rule was created to promote the public policy of obtaining insurance. Moreover, juries are supposed to decide cases based on their merits, not based on who will actually pay the damages.
Evidence of insurance is admissible, however, for other purposes such as proving bias or ownership of an item. For example, evidence that a person holds car insurance on a car is admissible to prove that he owns the car or that he had a motive to be angry at someone who damaged that car.
Sex Offense Cases & Similar Crimes
Prior acts regarding a person’s sexual history are generally inadmissible. However, there are certain exceptions available when the case regards a sexual offense. These rules are contained in Federal Rules 412 through 415.
Victim’s Sexual History
In a sex offense case, evidence of the victim’s sexual history is generally not admissible. This is sometimes known as a rape shield law, and it prevents people accused of sexual assault from attacking the victim by accusing her of having been promiscuous in the past. This is designed to encourage victims to come forward and to prevent rape trials from degenerating into “trials” of the victims.
However, in criminal cases, the victim’s sexual history is admissible to show the source of physical evidence such as sexual fluids and blood. Also, prior history with respect to the person accused can be offered to show consent. For example, evidence that two people have been involved in a consensual relationship for months can be used to refute a charge of forcible rape. Another exception is that in civil cases, the victim’s sexual history is only admissible if the information’s evidentiary value outweighs the risk of prejudice. The victim’s sexual history may also be used in civil cases if the victim brings it up.
Similar Crimes in Sex Offense Cases
In a prosecution for a sex offense, Federal Rule 413 allows the admission of evidence of similar crimes that the defendant has committed in the past. Rule 414 allows the same in criminal child molestation cases. Rule 415 allows the introduction of any prior sex offense evidence in civil sexual assault or child molestation cases.
 United States v. Navedo-Ramirez, 781 F.3d 563. 569 (5th Cir. 2015).
 United States v. Diaz, 961 F.2d 1417 (9th Cir. 1992).
 Michelson v. United States, 335 U.S. 469, 479 (1948).
 United States v. Tran Trong Cuong, 18 F.3d 1132, 1136 (4th Cir. 1994).
 Fed. R. Evid. 404(a)(2)(B).
 United States v. Bautista, 145 F.3d 1140, 1152 (10th Cir. 1998).
 United States v. Talamante, 981 F.2d 1153, 1156 (10th Cir. 1992).
 Fed. R. Evid. 404(b)(1).
 Harris v. Barone, 2013 U.S. Dist. LEXIS 144361 at *2 (W.D. Pa. 2013).
 Id. at *2-3.
 Id. at *8-9.
 United States v. Slaughter, 248 Fed. Appx. 210, 212 (2d Cir. 2007).
 United States v.Moran, 503 F.3d 1135, 1144-45 (10th Cir. 2007).
 United States v.Mathis, 264 F.3d 321, 326 (3d Cir. 2001).
 Michael D. Claus, “Profiles, Syndromes, and the Rule 405 Problem: Addressing a Form of Disguised Character Under the Federal Rules ofEvidence”, 88 Notre Dame L. Rev. 973. 976 (2012).
 Fed. R. Evid. 405.
 Fed. R. Evid. 405(b).
 Anthony J. Bocchino & David A. Sonenshein, A Practical Guide to Federal Evidence: Objections, Responses, Rules, and Practice Commentary 164–65 (8th ed. 2006).
United States v. Oliver, 525 F. 2d 731, 740 (8th Cir. 1975).
 United States v. Curtis, 644 F.2d 263, 268-69 (3d Cir. 1981).
 Fed. R. Evid. 405.
 Bocchino & Sonenshein, supra note 21.
 United States v. Gil,204 F.3d 1347, 1351-52 (11th Cir. 2000).
 Fed. R. Evid. 407.
 Michael W. Blanton, “Application of Federal Rule of Evidence 407in Strict Products Liability Cases: The Evidence Weighs Against Automatic Exclusion”, 65 UMKC L. Rev. 49, 58 (1996).
 Fed. R. Evid. 408.
 Fed. R. Evid. 409.
 Katharine T. Schaffzin, “Is Evidence Obsolete?”, 36 Rev. Litig. 529, 553 (2016).
 Fed. R. Evid. 411.
 Fed. R. Evid. 412.
 Fed. R. Evid. 413.
 Fed. R. Evid. 414.
 Fed. R. Evid. 415.