Relevancy and reasons for excluding relevant evidence - Admi...

Learning Outcomes

This article explains how character evidence operates under the Federal Rules of Evidence in an MBE context. It clarifies the baseline propensity ban of FRE 404(a)(1) and shows how that rule fits within general relevance principles and FRE 403 balancing. It details when character may nevertheless be admitted substantively, including situations where character is an essential element and when the criminal “Mercy Rule” permits the accused to offer favorable character traits that open the door to prosecution rebuttal. It distinguishes the permissible methods of proving character—reputation, opinion, and specific acts—under FRE 405 and contrasts substantive character use with impeachment of a witness’s credibility under FRE 608–609. It analyzes how specific prior acts may be admitted for non‑propensity purposes under the MIMIC framework of FRE 404(b), and how those rules interact with limiting instructions. It examines special doctrines governing the character of victims in violent‑crime prosecutions, including self‑defense and homicide first‑aggressor disputes. It also reviews the Rape Shield Law (FRE 412) and the expanded admissibility of prior sexual misconduct under FRE 413–415. Throughout, it emphasizes common exam traps, such as confusing character with habit and conflating substantive character with impeachment.

MBE Syllabus

For the MBE, you are required to understand character evidence admissibility, with a focus on the following syllabus points:

• The general rule of FRE 404(a)(1) barring character evidence to prove conduct in conformity with a character trait.
• The different treatment of character evidence in civil and criminal cases.
• When character is an “essential element” of a claim, charge, or defense, allowing proof by reputation, opinion, and specific acts under FRE 405(b).
• The “Mercy Rule” in criminal cases allowing a defendant to offer evidence of a relevant good character trait and thereby “open the door” to rebuttal.
• The prosecution’s options when the defendant or defense witnesses have placed character in issue.
• The rules for proving a victim’s character in criminal cases, including self‑defense and homicide cases, and the specific limitations imposed by the Rape Shield Law (FRE 412).
• The distinction between using character evidence substantively (FRE 404/405) and using it to impeach a witness’s credibility (FRE 608/609).
• The admissibility of specific acts for non‑propensity purposes under FRE 404(b), commonly remembered by the MIMIC mnemonic.
• The special rules allowing admission of prior sexual misconduct by a defendant in certain sexual assault or child‑molestation cases (FRE 413–415).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a civil battery case where the defendant claims self-defense, may the defendant introduce evidence that the plaintiff has a reputation in the community for being a violent person?
   1. Yes, to prove the plaintiff was the first aggressor.
   2. Yes, but only if the defendant was aware of the plaintiff's reputation at the time of the incident.
   3. No, because character evidence is generally inadmissible in civil cases to prove conduct.
   4. No, unless the plaintiff first introduces evidence of the defendant's character for violence.
2. A defendant is charged with embezzlement. During the defense case, the defendant calls a witness who testifies that, in her opinion, the defendant is an honest person. On cross-examination, the prosecutor asks the witness, "Are you aware that the defendant was disciplined last year for falsifying expense reports at his previous job?" Is this question permissible?
   1. Yes, because the defendant opened the door to character evidence.
   2. Yes, because specific acts are admissible to prove character on cross-examination.
   3. No, because specific acts are inadmissible to prove character.
   4. No, because the prosecutor may only rebut with reputation or opinion evidence of dishonesty.
3. Evidence of a defendant's prior crime is offered by the prosecution in a criminal case. Under which theory is this evidence most likely admissible?
   1. To show the defendant has a propensity to commit crimes.
   2. To show the defendant's motive for committing the charged crime.
   3. To impeach the defendant's character for truthfulness before the defendant testifies.
   4. To show the defendant's bad character once the defendant introduces evidence of good character.
4. In which of the following civil actions is character evidence regarding a party most likely to be admissible as substantive evidence?
   1. A negligence action where the plaintiff seeks to prove the defendant is usually careless.
   2. A breach of contract action where the defendant's honesty is questioned.
   3. A defamation action where the defendant pleads truth as a defense, asserting the plaintiff is a liar.
   4. A strict products liability action focusing on the manufacturer's quality control.

Introduction

The law of evidence distinguishes carefully between what the proof is about and why it is being offered. Character evidence is among the most heavily regulated categories because jurors are strongly tempted to reason: “This is a bad person, so they probably did this bad thing.” That is exactly the type of inference the Federal Rules of Evidence generally forbid.

Key Term: Character Evidence
Evidence about a person’s general disposition or tendency regarding a particular trait (for example, honesty, peacefulness, violence, prudence).

On the MBE, you must constantly keep straight three distinct uses of character:

• As substantive proof of how someone acted on a particular occasion (governed primarily by FRE 404–405).
• As proof of a character element that itself must be established as part of a claim or defense (also 404–405, but with much broader proof methods).
• As a way to attack or support a witness’s credibility, focusing on truthfulness (governed by FRE 608–609).

Most of the time, parties may not introduce character evidence merely to show that someone is the type of person who would act in a particular way, and therefore probably did so in the event being litigated. This basic prohibition is often called the propensity rule and is codified in FRE 404.

Key Term: Propensity Rule
The rule, primarily in FRE 404(a)(1), that evidence of a person’s character or character trait is not admissible to prove that on a specific occasion the person acted in accordance with that character or trait.

On the exam you will be tested repeatedly on whether you can:

• Spot when character evidence is being offered as substantive proof of conduct in conformity (usually inadmissible).
• Recognize when character is itself an element of a claim, charge, or defense.
• Apply the special criminal‑case exceptions for the defendant’s and victim’s character.
• Distinguish character from habit.
• Separate substantive character use (FRE 404/405) from impeachment use (FRE 608/609).
• Use FRE 404(b) correctly when specific prior acts are offered for a non‑propensity purpose.

The rest of this article develops these ideas in detail and highlights the specific exam traps that arise with character evidence.

General Rule and Methods of Proof

FRE 404(a)(1) states:

“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 the character or trait.”

This basic rule applies in both civil and criminal cases. The problem is not that character is never relevant; rather, its probative value is often outweighed by the risk that jurors will punish someone for being a “bad person” or will shortcut the fact‑finding process.

When character evidence is admissible (because of a specific exception or because character is itself “in issue”), FRE 405 controls the methods of proof:

• By reputation testimony.
• By opinion testimony.
• By specific instances of conduct (specific acts), but only in more limited settings.

Key Term: Reputation Testimony
Testimony that reports what the relevant community (such as the person’s workplace, neighborhood, or social group) generally says about a person’s character trait.

Key Term: Opinion Testimony
Testimony in which a witness states a personal opinion about another person’s character trait, based on the witness’s own acquaintance and observations.

Key Term: Specific Acts Evidence
Proof of particular past actions of a person, such as “he punched someone in a bar last year,” offered either to prove character or for some other purpose (like motive or identity).

Key Term: Character Witness
A witness called specifically to testify about another person’s character trait—usually by giving reputation or opinion testimony about that trait.

Under FRE 405(a):

• When character evidence is admissible, it is normally proved only by reputation or opinion testimony from a character witness.
• On cross‑examination of a character witness, the opponent may inquire into relevant specific instances of conduct to test the basis of the witness’s opinion or knowledge of reputation.
  • The cross‑examiner must have a good‑faith basis for the question.
  • If the witness denies knowledge of the specific act, the examiner is stuck with the answer; extrinsic evidence (such as records or other witnesses) cannot be introduced solely to prove that specific act when the only purpose is character.

Under FRE 405(b):

• If a character trait is an essential element of a charge, claim, or defense, it may be proved by reputation, opinion, and specific instances of conduct offered on direct examination.

Key Term: Essential Element of a Claim or Defense
A fact that the substantive law makes part of the definition of a claim, charge, or defense itself (for example, the truth of an allegedly defamatory statement that someone is a thief, or the carelessness of a driver in a negligent entrustment claim).

Distinguish proof of character as an element of a claim (rare, liberal proof methods) from proof of character as circumstantial evidence to show conduct in conformity (common, tightly restricted).

Key Term: Relevant Character Trait
A character trait that is logically related to the charged crime, claim, or defense, so that evidence of that trait meaningfully bears on the probability that the person committed (or did not commit) the act in question.

Character versus Habit

The Rules treat habit very differently from character. Habit evidence is often admissible to prove conduct in conformity because it is considered highly predictive and less prejudicial.

Key Term: Habit
A person’s regular, semi‑automatic response to a specific situation (for example, “every morning she checks her rearview mirror twice before backing out”), admissible under FRE 406 to prove that the person acted in the same way on a particular occasion.

Habit focuses on a specific, repeated response to a particular stimulus, not on a general disposition.

• “She is a careful driver” — character (general disposition, not admissible to prove she drove carefully this time).
• “Every weekday at 7:45 she stops fully at the stop sign at Elm and Main” — habit (specific, repeated pattern; admissible to show she stopped on the date of the accident).

On the MBE, one common trap is to dress up character as if it were habit. Evidence that someone “often gets into bar fights” is still character (violence), not a habit. Habit requires frequency plus particularity.

Character Evidence in Civil Cases

The propensity rule is applied particularly strictly in civil cases. As a starting point, character evidence is not admissible to show that a party acted in accordance with that character trait on the occasion in question.

• A plaintiff in a negligence case cannot prove the defendant “usually drives recklessly” to show the defendant drove negligently in this accident.
• A defendant cannot offer evidence that he “is known as a careful driver” to show he must have driven carefully this time.

Even when a party claims self‑defense in a civil battery action, the plaintiff’s or defendant’s violent character cannot be used substantively to show who struck first. (There may, however, be non‑propensity or impeachment uses, discussed later.)

The civil baseline under FRE 404(a)(1) is:

• No propensity use of character.
• No Mercy Rule (that is limited to criminal defendants).
• Character is admissible only when it is an element, or for a proper non‑propensity or impeachment purpose.

Exception: Character Directly “In Issue” (FRE 405(b))

In a small set of civil claims, character itself is an essential element. In those cases, FRE 405(b) allows reputation, opinion, and specific acts evidence on direct examination.

Typical “character in issue” civil claims include:

• Defamation: When the defendant pleads truth in response to a libel or slander claim, the plaintiff’s character for the trait mentioned is in issue.
  • If the defendant called the plaintiff a “thief,” the plaintiff’s honesty is directly at stake.
  • Specific incidents of theft, reputation for honesty, and opinions about honesty are all admissible.
• Negligent entrustment or negligent hiring: A claim that a defendant negligently entrusted a dangerous instrumentality (like a car or firearm) to someone unfit, or hired someone unfit, puts the entrustee’s or employee’s character in issue (for example, their carelessness or violence).
• Negligent supervision: Similar to negligent hiring: if the claim is that the employer negligently supervised an employee with a known propensity for certain misconduct, that propensity may itself be in issue.
• Child custody or parental fitness: In custody disputes, a parent’s character traits (such as responsibility, stability, sobriety, or non‑violence) are often treated as directly in issue because they bear on the child’s welfare.

In these rare situations:

• Parties may offer specific act evidence (for example, prior DUI convictions, prior assaults, or documented neglect) directly to prove the character trait.
• FRE 403 still applies; judges may exclude even relevant specific acts if their probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Worked Example 1.1

A newspaper publishes an article calling Paula, a local accountant, “a notorious embezzler.” Paula sues for defamation. The paper pleads truth and seeks to introduce evidence that Paula (1) was convicted of embezzlement five years ago, and (2) has a reputation in the local business community for dishonesty with client funds. Paula objects that this is inadmissible character evidence.

Answer:
The evidence is admissible because Paula’s honesty is an essential element of the defamation claim once the newspaper pleads truth. Under FRE 405(b), the defendant can prove Paula’s character for honesty or dishonesty by reputation, opinion, and specific instances of conduct, including the prior conviction. This is one of the rare civil settings where character is directly “in issue,” so the usual propensity ban does not apply.

Civil Non‑Propensity Uses (FRE 404(b))

Even in civil cases, specific acts may come in for non‑propensity purposes under FRE 404(b) (such as motive, intent, or knowledge), or to impeach a witness. Those uses are governed by the same rules discussed later in the MIMIC and impeachment sections.

Key Term: Non-Propensity Purpose
A reason for offering evidence of past acts other than to show character and action in conformity, such as proving motive, intent, identity, knowledge, plan, or absence of mistake.

For example:

• In a civil fraud case, evidence that the defendant used the same scheme before with other investors may be admitted to show intent or common plan, not to show merely “he’s a bad person.”
• In a negligent design case, evidence of prior similar accidents involving the same product may be introduced (not as character evidence) to show the manufacturer’s notice of a defect or the existence of a dangerous condition.

Remember that the Mercy Rule—allowing a criminal defendant to offer evidence of good character—does not apply in civil cases. Civil parties do not get to put on “I’m a law‑abiding person” evidence simply to show they probably did not commit the alleged wrong.

Character Evidence in Criminal Cases

Criminal cases are where the character rules become more complex. The Rules aim to balance the defendant’s need for exculpatory evidence against the danger that jurors will convict based on character rather than proof beyond a reasonable doubt.

Two key structural ideas:

• The prosecution generally cannot initiate propensity‑type character evidence about the defendant.
• The defendant controls whether certain character topics are opened up. Once the defendant chooses to introduce character evidence, the prosecution may respond.

Defendant’s Character: The Mercy Rule (FRE 404(a)(2)(A))

The prosecution may not start by offering evidence that the defendant is, for example, a violent or dishonest person in order to show that he committed the crime charged. But the defendant may choose to offer evidence of a relevant good character trait to suggest that he is unlikely to have committed the offense. This is sometimes called the Mercy Rule.

Key Term: Mercy Rule
The principle in FRE 404(a)(2)(A) that allows a criminal defendant to introduce evidence of a relevant good character trait (such as honesty in a fraud case) to suggest that the defendant is unlikely to have committed the charged offense.

The Mercy Rule has several important limits:

• The trait must be relevant to the crime.
  • Honesty is relevant in fraud, embezzlement, perjury.
  • Peacefulness is relevant in assault, robbery, homicide.
  • Law‑abidingness is generally treated as relevant to most crimes, but it is safer to tie the trait more specifically to the charge when possible on the MBE.
• The method of proof on direct is limited by FRE 405(a):
  • The defendant may use reputation or opinion testimony only.
  • The defendant may not use specific acts of good conduct, such as “he once returned a lost wallet” or “he has never been arrested before,” to show good character.

Key Term: Opens the Door
When a party introduces character evidence on a topic (for example, the defendant’s honesty), thereby allowing the opposing party to introduce otherwise inadmissible rebuttal evidence on the same trait.

Once the defendant offers such evidence, the topic is “open” for that specific trait.

Key Term: Relevant Character Trait
In the Mercy Rule context, a character trait of the defendant that logically bears on whether he is likely to have committed the specific charged offense (for example, honesty for fraud, peacefulness for battery).

Prosecution’s Rebuttal

If the defendant opens the door to his own relevant good character, FRE 404(a)(2)(A) and 405(a) allow the prosecution to respond in two ways:

• Cross‑examination of the defense character witness:

  The prosecutor may ask the character witness about specific instances of the defendant’s conduct that are inconsistent with the asserted good trait, to test the witness’s credibility and knowledge.

  • The prosecutor must have a good‑faith basis for asking about the specific act.
  • The prosecutor may not prove the act with extrinsic evidence if the witness denies knowledge. The question is permitted; outside proof is not.

• Calling its own character witnesses:

  The prosecution may offer reputation or opinion testimony that the defendant has a bad character for the same trait placed in issue by the defense.

Key Term: Impeachment (Character for Truthfulness)
The use of reputation, opinion, specific acts, or qualifying convictions to attack or support a witness’s character for truthfulness under FRE 608 and 609, without treating that character as substantive evidence of conduct in conformity.

Note: Once the defendant takes the stand as a witness, his character for truthfulness may be attacked by impeachment methods (FRE 608/609) even if he has not used the Mercy Rule to offer good character. That impeachment use is separate from substantive character evidence under FRE 404/405.

Worked Example 1.2

David is on trial for battery. He calls Wendy to testify that David has a reputation in their community for being a peaceful and non‑violent person. On cross‑examination, may the prosecutor ask Wendy, "Have you heard that David was arrested for assault three years ago?"

Answer:
Yes. David has opened the door by offering evidence of his good character for peacefulness, a trait relevant to a battery charge. Under FRE 405(a), the prosecutor may cross‑examine Wendy about specific instances of David’s conduct (such as a prior assault arrest) to test Wendy’s familiarity with his reputation and the basis for her opinion. The prosecutor must have a good‑faith basis for the question and is stuck with Wendy’s answer; no extrinsic proof of the arrest is allowed solely for this character purpose.

On the MBE, be careful to distinguish this character‑witness cross‑examination from general impeachment of a fact witness’s character for truthfulness under FRE 608(b). Both allow questions about specific acts, but they serve different purposes and operate under different limitations.

Victim’s Character in Criminal Cases (FRE 404(a)(2)(B) & (C))

In some criminal cases—especially involving violence—the defendant may wish to introduce evidence about the victim’s character.

FRE 404(a)(2)(B) provides that:

• A defendant may offer reputation or opinion evidence of a victim’s relevant trait, most often a trait of violence in a self‑defense case.
• If the defendant does so, the prosecution may:
  • Rebut with reputation or opinion evidence of the victim’s good character for that same trait (for example, peacefulness), and/or
  • Offer reputation or opinion evidence that the defendant has a bad character for that same trait (for example, violence).

This is a second way in which the defendant can “open the door,” this time as to the victim’s character—and, by extension, the defendant’s own character for that trait.

Key Term: First Aggressor
In a self‑defense or homicide case, the person who is alleged to have initiated the use or threat of deadly or serious physical force.

Homicide First‑Aggressor Rule (FRE 404(a)(2)(C))

FRE 404(a)(2)(C) adds a special rule for homicide cases:

• If the defendant presents any evidence that the victim was the first aggressor—whether through character evidence or testimony about the incident—the prosecution may introduce evidence that the victim had a reputation for peacefulness, even though the defendant did not affirmatively attack the victim’s character trait of violence.

Thus, in homicide:

• Defendant claims “the victim attacked me first.”
• That claim alone allows the prosecution to offer reputation or opinion evidence that the victim was peaceful, to undermine the first‑aggressor claim.

Note that this homicide rule is asymmetrical: it specifically empowers the prosecution; it does not create any new right for the defendant.

State‑of‑Mind vs. Propensity Use

Exam questions often test a subtle distinction:

• If the defendant knew of the victim’s violent character (through reputation or specific acts), that knowledge may be admissible not to show that the victim was in fact violent on this occasion, but to show the reasonableness of the defendant’s fear and state of mind in claiming self‑defense (a non‑propensity purpose).
• In that setting, evidence of specific acts by the victim known to the defendant may be allowed, not as character evidence, but to show what the defendant reasonably believed.

By contrast, when evidence is offered to show that the victim acted in conformity with a character for violence (for example, to prove the victim started the fight), FRE 404/405 strictly limit the methods of proof to reputation and opinion.

Worked Example 1.3

D is charged with stabbing V. D claims self‑defense and offers testimony from Witness that V has a reputation in the community for violence. D also seeks to introduce evidence that V previously stabbed another person in a bar fight. D knew about that prior stabbing at the time of the incident.

Which evidence is admissible?

Answer:
Witness’s reputation testimony about V’s violence is admissible under FRE 404(a)(2)(B) as evidence of the victim’s violent character, relevant to the self‑defense claim. The specific prior stabbing can be admissible, but only for a limited purpose: to show D’s state of mind (that he reasonably feared V) because D knew of it. It is generally not admissible to show directly that V was the first aggressor, because that would be using a specific act as character evidence, which FRE 405(a) does not allow on direct.

Rape Shield Law (FRE 412)

In cases involving alleged sexual misconduct, there is an additional, very strict limitation on the use of character‑type evidence about the alleged victim.

Key Term: Rape Shield Law
The set of rules (primarily FRE 412) that sharply restricts the admission of evidence regarding an alleged victim’s prior sexual behavior or sexual predisposition in cases involving alleged sexual misconduct.

FRE 412 generally makes inadmissible, in both criminal and civil sexual‑misconduct cases:

• Evidence of the alleged victim’s other sexual behavior (for example, number of sexual partners, prior sexual acts with third parties), and
• Evidence of the alleged victim’s sexual predisposition (for example, manner of dress, lifestyle, sexual reputation).

This evidence is ordinarily barred even if offered as character or to suggest consent.

There are narrow exceptions:

• Criminal cases (FRE 412(b)(1)):
  • Specific sexual behavior by the victim to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.
  • Specific instances of sexual behavior between the victim and the defendant, if offered by the defendant to prove consent, or by the prosecution for any relevant purpose.
  • Evidence whose exclusion would violate the defendant’s constitutional rights (for example, due process confrontation rights).
• Civil cases (FRE 412(b)(2)):
  • Evidence of the victim’s sexual behavior or predisposition is admissible only if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Notice and protective procedures are required.

On the MBE, rape shield questions often present a defendant trying to introduce evidence of the victim’s promiscuity with others to show consent; that evidence is almost always inadmissible under FRE 412.

Prior Sexual Misconduct by the Defendant (FRE 413–415)

In federal criminal cases where the defendant is charged with sexual assault or child molestation, FRE 413 and 414 significantly relax the normal propensity ban:

• The prosecution may introduce evidence that the defendant committed other sexual assaults or child molestations.
• The jury may consider those prior acts for any relevant matter, including propensity.

In civil cases involving sexual assault or child molestation, FRE 415 similarly permits evidence of a party’s prior such acts.

These rules:

• Still require FRE 403 balancing.
• Require advance notice to the defense.
• Are specific to sexual assault and child‑molestation charges or claims.

They are a major exception to the general principle that prior bad acts are not admissible to prove propensity.

Specific Acts for Non‑Propensity Purposes (FRE 404(b) – MIMIC)

FRE 404(b) deals with evidence of crimes, wrongs, or other acts that are not offered to show someone’s character, but rather to prove some other relevant fact.

Under 404(b)(1):

• Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show action in conformity.

Under 404(b)(2):

• The same evidence may be admissible for other purposes, such as proving:

Key Term: MIMIC Rule
A mnemonic for common non‑propensity purposes under FRE 404(b): Motive, Intent, absence of Mistake or accident, Identity (often via a distinctive modus operandi), and Common plan or scheme. Courts also commonly add opportunity, preparation, and knowledge.

Key Term: Non-Propensity Purpose
A legitimate evidentiary purpose that does not depend on character, such as proving motive, knowledge, or identity.

Key points about 404(b):

• The prior acts need not be crimes and need not have resulted in convictions; “any other act” can qualify.
• The proponent must show by a preponderance of the evidence that the act occurred (a preliminary fact determination by the judge).
• The act must be relevant to some issue other than propensity—often a disputed element such as intent or identity.

Examples of non‑propensity uses:

• Motive: Prior assault on the same victim shows hostility and motive to commit the charged offense.
• Intent: Prior drug sales help show intent to distribute in a drug‑possession‑with‑intent case.
• Absence of mistake/accident: Repeated similar “accidents” (for example, multiple insured fires at properties owned by the defendant) suggest that the current incident was not an accident.
• Identity: Prior robberies in which the robber used a distinctive purple ski mask can be used to show identity in a new robbery with that same unusual feature.
• Common plan or scheme: Evidence that the defendant previously used the same pattern of conduct to defraud others may show a broader scheme of which the charged offense is a part.
• Knowledge: Prior violations or warnings can show that a defendant knew of a hazardous condition or of the illegality of conduct.

FRE 404(b) applies in both criminal and civil cases.

Procedural and substantive safeguards:

• In criminal cases, the prosecution must provide reasonable pretrial notice of its intent to offer 404(b) evidence if the defendant requests it.
• The court must conduct a FRE 403 balancing analysis.
• If the evidence is admitted, the court should give a limiting instruction directing the jury to consider the evidence only for the approved non‑propensity purpose.

Key Term: Limiting Instruction
A direction from the judge to the jury that a particular piece of evidence may be considered only for a specified, permissible purpose (for example, identity) and not for an improper purpose such as propensity.

Worked Example 1.4

Defendant is charged with bank robbery. The robber wore a distinctive purple ski mask. The prosecution offers testimony that Defendant robbed another bank two weeks earlier wearing an identical purple ski mask. Is this evidence admissible?

Answer:
Yes, likely admissible under FRE 404(b) to prove identity. The unusual purple ski mask can qualify as a distinctive modus operandi linking the prior robbery to the charged offense. The evidence is not being used to prove that Defendant is a “robber type” person, but that he is the particular robber in this case. The court must still find that the probative value of the prior robbery on the issue of identity is not substantially outweighed by the danger of unfair prejudice under FRE 403, and should give a limiting instruction explaining the narrow purpose of the evidence.

On the MBE, if an answer choice justifies prior‑act evidence by saying it shows the defendant’s “criminal disposition” or “propensity,” that choice is almost always wrong. Correct answers will rely on MIMIC‑type purposes and FRE 403.

Character Evidence for Impeachment

So far, the focus has been on substantive character evidence—offered to prove conduct in conformity or to prove a character element of a claim. Character evidence also appears in a different role: impeaching a witness’s credibility.

FRE 404(a)(3) explicitly cross‑references FRE 607, 608, and 609, which regulate using character for truthfulness to attack or support a witness’s credibility.

The key points:

• Substantive character use is governed by FRE 404/405.
• Impeachment use is governed by FRE 608/609.
• The same piece of evidence (for example, a prior fraud conviction) might be relevant both substantively (under 404(b)) and for impeachment (under 609). The trial court should give a limiting instruction.

Key Term: Crimen Falsi
A category of crimes involving a dishonest act or false statement (such as perjury, fraud, embezzlement, or forgery) that are especially probative of untruthfulness and are automatically admissible for impeachment under FRE 609(a)(2), subject to a 10‑year limit and narrow exceptions.

Impeachment by Character for Truthfulness (FRE 608)

Under FRE 608(a):

• A witness’s character for truthfulness or untruthfulness may be attacked or supported by reputation or opinion testimony.
• Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

Under FRE 608(b):

• Specific instances of a witness’s conduct that are probative of truthfulness or untruthfulness may be inquired into on cross‑examination of:
  • The witness, or
  • Another witness whose character testimony has been introduced.
• The examiner must act in good faith and is bound by the witness’s answers; extrinsic evidence of those specific acts is not admissible solely to attack or support the witness’s character for truthfulness.

These rules apply in both civil and criminal cases, and they are distinct from 404(a) character rules—which deal with substantive character, not credibility.

Impeachment by Prior Convictions (FRE 609)

FRE 609 allows, subject to detailed conditions, impeachment of a witness (including a criminal defendant who testifies) by certain criminal convictions:

• Crimes involving dishonest acts or false statements (crimen falsi) are generally admissible, regardless of punishment, subject to:
  • A 10‑year time limit (measured from conviction or release, whichever is later), and
  • A narrow exception allowing exclusion only if the probative value is substantially outweighed by unfair prejudice.
• Other felonies (punishable by more than one year in prison) may be admissible to impeach:
  • If the witness is not the criminal defendant, under the usual FRE 403 balancing (probative value substantially outweighed by unfair prejudice).
  • If the witness is the criminal defendant, only if the probative value outweighs its prejudicial effect (a stricter, defendant‑protective standard).

These convictions are admitted to show untruthful character, not propensity to commit crimes generally.

Worked Example 1.5

D is on trial for mail fraud. He testifies in his own defense. The prosecution seeks to introduce evidence that D was convicted three years ago of felony burglary and five years ago of felony tax fraud. Burglary did not involve any false statements; tax fraud did. Are the convictions admissible for impeachment?

Answer:
The tax‑fraud conviction is a crimen falsi and is automatically admissible under FRE 609(a)(2) (subject to the 10‑year rule and limited 403 exclusion), even though D is the criminal defendant. The burglary conviction is a felony not involving dishonesty; it is admissible under FRE 609(a)(1)(B) only if the court finds that its probative value outweighs its prejudicial effect to D. The MBE will often expect you to separate these two categories and apply the different standards.

Substantive Character vs. Impeachment on the MBE

A recurring MBE trap is to mislabel impeachment evidence as substantive character evidence or vice versa. Ask yourself:

• Why is the evidence being offered?
  • If to show the defendant likely did the charged act (for example, “he’s a violent person, so he probably committed this assault”), the 404/405 rules apply.
  • If to show a witness is lying or telling the truth, 608/609 apply.

Exam Tip:
If the defendant has not testified and the evidence is offered before any witness credibility issue arises, it almost certainly is not impeachment evidence. The only available bases are substantive character (404/405), non‑propensity use (404(b)), or one of the special sexual‑misconduct rules (413–415).

Worked Example 1.6

In a burglary trial, the prosecution calls a witness who testifies to seeing D near the scene. On cross‑examination, defense counsel asks, “Isn’t it true you lied on your loan application last year by inflating your income?” The prosecution objects that this is improper character evidence.

Answer:
The objection should be overruled. The question is proper impeachment under FRE 608(b): it concerns a specific act (lying on a loan application) that is probative of the witness’s truthfulness. Because it is offered to attack the witness’s credibility, not to show the witness acted in conformity with a bad character in committing some act at issue in the case, the 404(a) substantive character rules do not apply.

Key Point Checklist

This article has covered the following key knowledge points:

• Character evidence is generally inadmissible to prove that a person acted in conformity with a character trait on a particular occasion (the propensity rule in FRE 404(a)(1)).
• When character is an essential element of a civil claim or defense (for example, defamation truth, negligent entrustment, negligent hiring, parental fitness), it may be proved by reputation, opinion, and specific acts under FRE 405(b).
• In ordinary civil cases, parties may not use character evidence to show conduct in conformity; the Mercy Rule is confined to criminal defendants.
• In criminal cases, the defendant may invoke the Mercy Rule and offer reputation or opinion evidence of a relevant good character trait; by doing so, the defendant opens the door to prosecution rebuttal on that trait.
• Once the door is opened, the prosecution may cross‑examine the defense character witness about specific acts and may call its own character witnesses to testify to the defendant’s bad character for the same trait, but may not prove those specific acts with extrinsic evidence solely for character.
• A criminal defendant who testifies may also have his character for truthfulness impeached under FRE 608/609 even if he has not used the Mercy Rule.
• A criminal defendant may offer reputation or opinion evidence of a victim’s relevant character trait (such as violence) under FRE 404(a)(2)(B); in response, the prosecution may rebut the victim’s character and, for that same trait, the defendant’s character.
• In homicide cases, if the defendant introduces evidence that the victim was the first aggressor, the prosecution may offer evidence that the victim was peaceful under FRE 404(a)(2)(C), even if the defendant did not first attack the victim’s character.
• The Rape Shield Law (FRE 412) severely limits evidence of an alleged victim’s sexual behavior or predisposition in sexual‑misconduct cases, subject to narrow exceptions; related rules (FRE 413–415) allow prior sexual misconduct by a defendant to be used more freely, including for propensity.
• FRE 404(b) permits specific acts to be admitted for non‑propensity purposes—such as motive, intent, absence of mistake, identity, or common plan (MIMIC)—subject to notice and FRE 403 balancing, and often accompanied by a limiting instruction.
• Habit evidence, unlike character evidence, may be used to show conduct in conformity because it reflects a regular, semi‑automatic pattern of behavior under FRE 406.
• Character evidence used for impeachment (FRE 608/609) focuses on truthfulness or untruthfulness and has its own methods and limits; it must be distinguished from substantive character evidence under FRE 404/405.
• Certain prior convictions, especially crimen falsi crimes involving dishonesty or false statements, are especially powerful impeachment tools under FRE 609 and are treated differently from other felonies.
• Limiting instructions under FRE 105 are central whenever evidence (such as prior acts or dual‑use convictions) is admitted for a narrow permissible purpose but carries a risk of improper propensity use.

Key Terms and Concepts

• Character Evidence
• Propensity Rule
• Reputation Testimony
• Opinion Testimony
• Specific Acts Evidence
• Essential Element of a Claim or Defense
• Habit
• Non-Propensity Purpose
• Mercy Rule
• Opens the Door
• Rape Shield Law
• MIMIC Rule
• Limiting Instruction
• Character Witness
• Relevant Character Trait
• First Aggressor
• Crimen Falsi
• Impeachment (Character for Truthfulness)