Article IV — Relevance and Its Limits
Rule 404: Character Evidence; Other Crimes, Wrongs, or Acts
What is Character Evidence; Other Crimes, Wrongs, or Acts?
Rule 404 is one of the most heavily tested evidence rules. Its core principle is the propensity rule: you generally cannot use evidence about a person's character to argue that they acted consistently with that character on a specific occasion. In other words, you cannot say 'he's a violent person, therefore he probably committed this assault.'
Source: Fed. R. Evid. 404
Rule Text
Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. However, a criminal defendant may offer pertinent character evidence, and the prosecution may rebut it. The prosecution may also offer evidence of the victim's character in certain circumstances. Evidence of any other crime, wrong, or 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 that character, but it may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Plain English Explanation
Rule 404 is one of the most heavily tested evidence rules. Its core principle is the propensity rule: you generally cannot use evidence about a person's character to argue that they acted consistently with that character on a specific occasion. In other words, you cannot say 'he's a violent person, therefore he probably committed this assault.'
The rule has important exceptions. In criminal cases, the defendant can open the door by offering evidence of their own good character ('mercy rule'). Once the defendant opens this door, the prosecution can respond with rebutting character evidence. There are also specific provisions for victim character evidence, particularly in homicide and self-defense cases.
Rule 404(b) is especially critical. While other acts evidence cannot be used to show propensity, it can be admitted for other purposes — the so-called MIMIC purposes: Motive, Intent, absence of Mistake, Identity, Common plan or scheme. The prosecution must provide reasonable notice before trial of any 404(b) evidence it intends to use. This is one of the most frequently litigated evidence issues in criminal cases.
Key Points
- 1The propensity rule: character evidence cannot be used to prove action in conformity on a particular occasion
- 2Criminal defendants may offer pertinent character evidence about themselves (mercy rule) — prosecution may rebut
- 3404(b) other acts evidence is admissible for non-propensity purposes: MIMIC (Motive, Intent, Mistake, Identity, Common plan)
- 4The prosecution must provide reasonable pretrial notice of 404(b) evidence
- 5404(b) evidence is still subject to 403 balancing
Common Exam Issues
- Distinguishing propensity use (forbidden) from MIMIC purposes (permitted) under 404(b)
- Analyzing whether the defendant has 'opened the door' to character evidence
- Identifying when other-acts evidence is really being offered for propensity versus a legitimate non-propensity purpose
- The interplay between 404(b) and 403 — even if evidence fits a MIMIC purpose, it can still be excluded if unfairly prejudicial
Landmark Cases
- Michelson v. United States
- Huddleston v. United States
- United States v. Trenkler
Article IV — Relevance and Its Limits
This rule is part of Article IV — Relevance and Its Limits of the Federal Rules of Evidence.
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