Also known as: Federal Rules of Evidence 404 · FRE 404 · Fed. R. Evid. 404 · Rule 404 · Rule 404(b)
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that bars the use of a person's character or specific prior acts to prove action in conformity with that character on a particular occasion. The rule permits such evidence when offered for a non-propensity purpose such as motive, intent, knowledge, identity, or absence of mistake, subject to the conditional relevance standard and Rule 403 balancing.
Felipe Figueroa faces charges for falsifying insurance claims at his current firm. The prosecution offers records from his prior job showing inflated payouts to friends. The court admits the records after finding sufficient evidence for a jury to conclude the prior acts occurred and that their value on intent is not substantially outweighed by unfair prejudice.
Felix Franco stands trial for possessing a firearm as a felon. The government introduces evidence of his prior possession of a similar weapon obtained from the same shop. The court allows the evidence to prove knowledge after confirming the jury could reasonably find the earlier act occurred.
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Francisco Frost is prosecuted for being a felon in possession of a firearm. He offers to stipulate to his prior conviction. The court requires the government to accept the stipulation and excludes the full record of the earlier offense to prevent unfair prejudice.
Freya Freeman, a site supervisor, offers testimony that she always halts work at any safety risk. The prosecutor responds with evidence of prior incidents in which she ignored warnings. The court admits the rebuttal evidence because it directly counters the character trait placed in issue.
Finn Fletcher is tried for a bank robbery. The government offers evidence of his earlier robbery using the same distinctive method. The court admits the evidence after determining a reasonable jury could find he committed the prior act and that its probative value on identity is not substantially outweighed by prejudice.
Faye Fuller testifies that she has always been honest in her business dealings. The prosecutor then offers evidence of a prior fraudulent transaction. The court permits the rebuttal because the defendant placed her character for truthfulness at issue.
The trial court does not make a preliminary finding that the government proved the prior act by a preponderance of the evidence. Instead the court asks only whether sufficient evidence exists for a reasonable jury to conclude the defendant committed the act and then conducts Rule 403 balancing.
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Once the defendant offers evidence that the victim was the first aggressor, Rule 404(a)(2)(B)(ii) permits the prosecutor to rebut with evidence of the victim's peacefulness.
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No. Rule 404(a)(3) expressly allows evidence of a witness's character for truthfulness or untruthfulness under Rules 607, 608, and 609.
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No. The exceptions in Rule 404(a)(2) apply only in criminal cases. In civil actions the general prohibition on propensity evidence controls.
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…factor." Advisory Committee's Notes on Fed. Rule Evid. 403, 28 U. S. C. App., p. 860. The point gets a reprise in the Notes to Rule 404(b), dealing with admissibility when a given evidentiary item has the dual nature of legitimate evidence of an element and illegitimate evidence of character: "No mechanical solution is…