Also known as: Federal Rule of Evidence 404 · Rule 404 · FRE § 404 · character evidence rule · 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 character trait to prove that the person acted in accordance with that trait on a particular occasion. Evidence of other crimes, wrongs, or acts may be admitted for a non-propensity purpose such as motive, intent, or absence of mistake when there is sufficient evidence for a reasonable jury to find the act occurred and the probative value is not substantially outweighed by unfair prejudice.
Leo Grant faces charges for creating fake insurance claims at Horizon Mutual. The prosecution offers evidence from his time at Apex Insurance showing he inflated similar claims for friends. The court admits the evidence after finding a reasonable jury could conclude the prior acts occurred and that the probative value on intent is not substantially outweighed by unfair prejudice.
Michael Stevens is charged with possessing a firearm as a felon. The government offers evidence of his earlier possession of a different firearm in a separate incident. The court admits the evidence to show Stevens knew the item was a firearm.
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Albert is prosecuted for being a felon in possession of a handgun found in his government vehicle. He offers to stipulate to his prior bribery conviction. The court requires the prosecution to accept the stipulation rather than introduce the full details of the bribery scheme.
Jean is charged with reckless endangerment after a crane collapse. He offers testimony that he is extremely safety-conscious. The prosecutor introduces evidence of prior incidents where Jean ignored safety warnings to rebut the trait.
A defendant is charged with robbing a bank using a distinctive disguise. The government offers evidence of an earlier robbery in which the defendant used the same disguise. The court admits the evidence after determining a reasonable jury could find the defendant committed the prior robbery.
A defendant testifies and denies any prior criminal activity. The government then introduces evidence of a prior conviction on cross-examination. The court of appeals holds that the defendant cannot complain on appeal about the introduction of the prior conviction.
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 whether there is sufficient evidence for a reasonable jury to find that the defendant committed the act and whether the probative value on a non-propensity issue is not substantially outweighed by unfair prejudice under Rule 403.
Supporting sources
Once the defendant has introduced evidence that the victim was the first aggressor, Rule 404(a)(2)(B)(ii) permits the prosecutor to offer evidence of the victim's character for peacefulness to rebut that claim.
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No. Rule 404(a)(3) expressly permits evidence of a witness's character for truthfulness or untruthfulness under Rules 607, 608, and 609 even though the same evidence would be inadmissible to prove conduct in conformity with character.
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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…