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

Learning Outcomes

This article examines core MBE-tested doctrines on character and related evidence, including:

• The general prohibition on using character to prove conduct by propensity in civil and criminal trials, and the policy reasons the rules distrust such inferences.
• When and how a criminal defendant may invoke the Mercy Rule to offer good‑character evidence about themselves or the alleged victim, and the precise ways the prosecution can rebut.
• Situations in which character is an essential element in civil litigation (defamation, negligent hiring or entrustment, custody), and the expanded methods of proving character in those cases.
• The proper use of other‑acts evidence under the MIMIC doctrine, the need for a genuine non‑propensity purpose, notice requirements, and the central role of Rule 403 balancing.
• How to distinguish character from habit and organizational routine practice, and how to evaluate whether a pattern of conduct qualifies as admissible habit evidence.
• The operation of the rape shield rule and the special similar‑acts provisions in sexual‑misconduct cases, with an emphasis on common MBE traps.
• How character for truthfulness operates as a distinct impeachment concept under FRE 608–609, including reputation, opinion, specific acts, and qualifying convictions.

MBE Syllabus

For the MBE, you are required to understand the principles governing the admission and exclusion of character and related evidence, with a focus on the following syllabus points:

• Relevance and the general propensity ban for character evidence in civil and criminal cases.
• The Mercy Rule for criminal defendants and victims, including homicide‑specific rules.
• Methods of proving character (reputation, opinion, specific acts) and the circumstances in which each is permitted.
• Other‑acts evidence under FRE 404(b): permissible non‑propensity purposes (MIMIC) and notice requirements.
• Habit and routine practice evidence and how to distinguish it from character.
• Rape shield protections (FRE 412) and similar‑acts rules in sexual‑assault and child‑molestation cases (FRE 413–415).
• The basic framework for using character for truthfulness to impeach witnesses (FRE 608–609).

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 federal trial for assault, the Defendant calls a witness to testify that the Defendant has a reputation in the community for peacefulness. This testimony is:
   1. Admissible to show the Defendant likely acted peacefully on the occasion in question.
   2. Admissible only if the Defendant first testifies.
   3. Inadmissible character evidence.
   4. Inadmissible because it is opinion testimony.
2. Plaintiff sues Driver for negligence after a car accident. Plaintiff seeks to introduce evidence that Driver received speeding tickets on two separate occasions within the last year. This evidence is most likely:
   1. Admissible as habit evidence.
   2. Admissible to show Driver has a character for speeding.
   3. Inadmissible because character evidence is not allowed in civil cases.
   4. Inadmissible to prove Driver was speeding at the time of the accident, but potentially admissible for another purpose if relevant.
3. Defendant is charged with bank robbery. The prosecution seeks to introduce evidence that the Defendant committed another bank robbery six months prior using the same distinctive disguise (a clown mask and a specific getaway car). This evidence is:
   1. Admissible to show the Defendant has a propensity for robbing banks.
   2. Admissible to prove identity.
   3. Inadmissible character evidence.
   4. Inadmissible unless the Defendant first introduces evidence of good character.

Introduction

Evidence must be relevant to be admissible. Relevant evidence is evidence having any tendency to make a fact of consequence more or less probable than it would be without the evidence (FRE 401). Irrelevant evidence is inadmissible (FRE 402). Even relevant evidence may be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time (FRE 403).

A recurring application of these principles involves character evidence.

Key Term: Character Evidence
Evidence about a person’s general disposition or traits (e.g., honesty, violence, carefulness), typically offered to suggest that the person acted in conformity with that character on a particular occasion.

Under FRE 404(a)(1), evidence of a person’s character or character trait is generally not admissible to prove that on a particular occasion the person acted in accordance with that trait. This is the propensity rule.

Key Term: Propensity
The inference that, because a person has a certain character trait (e.g., is violent), they were more likely to act in line with that trait on the occasion in question.

The law distrusts propensity reasoning for several reasons:

• Character is often only weakly probative of specific conduct.
• There is a high risk of unfair prejudice: the jury may punish a “bad person” regardless of proof about the charged event.
• Character evidence invites mini‑trials on collateral issues (prior episodes), wasting time and confusing the issues.

Yet the Federal Rules recognize important exceptions and alternative uses. You must be able to separate:

• Substantive character evidence: offered to prove behavior in conformity (usually barred).
• Character “at issue”: when a trait itself is an element of a claim or defense (allowed, including specific acts).
• Other‑acts evidence: prior crimes or wrongs used for MIMIC purposes (motive, intent, absence of mistake, identity, common scheme).
• Habit evidence: a person’s semi‑automatic response to a specific situation (admissible to prove conduct).
• Impeachment character evidence: character for truthfulness, used to attack or support witness credibility.

Key Term: Character for Truthfulness (Impeachment)
A narrow character trait—honesty or dishonesty—relevant only to whether a witness is likely to testify truthfully, not to whether the witness committed the act in dispute.

The MBE frequently tests your ability to identify why the evidence is being offered and to apply the correct rule: is this barred propensity evidence, admissible MIMIC evidence, habit, character at issue, or impeachment?

Methods of Proving Character (FRE 405)

Whenever character evidence is admissible, you must also know how it can be proved:

• Reputation testimony: what the witness has heard the community say about the person.
• Opinion testimony: the witness’s personal opinion of the person’s character.
• Specific instances of conduct: concrete examples of behavior.

Under FRE 405:

• When character evidence is admissible only as circumstantial proof (e.g., under the Mercy Rule), it may be proved by reputation or opinion. On cross‑examination, the opponent may ask about specific instances to test the character witness’s basis, but may not prove those incidents with extrinsic evidence.
• When character is an essential element of a charge, claim, or defense (rare civil situations), it may be proved by reputation, opinion, and specific instances on direct.

The rest of this article walks through the main MBE‑tested contexts.

Exceptions to the Propensity Rule in Criminal Cases

FRE 404(a)(2) creates limited exceptions where character evidence may be used to show conduct in line with that character. These exceptions heavily favor the defendant.

Key Term: Mercy Rule
In a criminal case, the principle that only the defendant may open the door to character evidence about themselves or the victim, and the prosecution may then rebut.

Defendant's Character (The Mercy Rule)

In a criminal case, the defendant may introduce evidence of a relevant character trait to suggest that they did not commit the charged offense (FRE 404(a)(2)(A)).

• Relevant trait means connected to the crime charged:
  • Peacefulness in an assault or homicide case.
  • Honesty in a fraud, theft, or embezzlement case.
  • Law‑abidingness in many crimes.
• Method of proof on direct: reputation or opinion only (FRE 405(a)). The defendant cannot use specific instances of good conduct on direct examination.

Once the defendant offers such evidence, they have “opened the door” and the prosecution may rebut.

Key Term: Essential‑Element Character Evidence
Character evidence offered because the character trait itself is an element of a claim, charge, or defense (e.g., truth in defamation, carelessness in negligent entrustment), and therefore provable by specific acts as well as reputation and opinion.

Prosecution's Rebuttal of Defendant's Character

If the defendant offers evidence of their own good character for a relevant trait:

• The prosecution may:
  • Cross‑examine the defendant’s character witness about specific instances of the defendant’s conduct inconsistent with the claimed trait (FRE 405(a)).
    • The prosecutor must have a good‑faith basis.
    • The prosecutor is stuck with the witness’s answer—no extrinsic proof of the specific incidents.
  • Call its own character witnesses to testify to the defendant’s bad reputation for that trait or their opinion that the defendant has that bad trait.

The prosecution may not initiate character evidence about the defendant for propensity; it may only respond after the defendant has used the Mercy Rule.

Victim's Character

A criminal defendant may also introduce evidence of a victim’s relevant character trait (FRE 404(a)(2)(B))—most commonly in self‑defense cases.

• Example: In an assault prosecution, the defendant claims self‑defense and offers reputation or opinion evidence that the victim is violent.
• Method on direct: again, reputation or opinion only.

Once the defendant attacks the victim’s character for a specific trait (e.g., violence), the prosecution’s rebuttal options expand.

Prosecution's Rebuttal of Victim's Character

If the defendant offers evidence of the victim’s bad character for a trait (e.g., violence):

• The prosecution may:
  • Offer reputation or opinion evidence that the victim actually has a good character for that trait (FRE 404(a)(2)(B)(i)); and
  • Offer reputation or opinion evidence that the defendant has a bad character for that same trait (FRE 404(a)(2)(B)(ii)).

The symmetry is important: opening the door regarding the victim’s violence allows the prosecution to portray both the victim as peaceful and the defendant as violent.

Special Rule in Homicide Cases

In a homicide prosecution, if the defendant offers any evidence that the victim was the first aggressor—whether or not the defendant offers character evidence—the prosecution may introduce reputation or opinion evidence that the victim had a character trait for peacefulness (FRE 404(a)(2)(C)).

The defendant does not have to open the character door; asserting “the victim attacked first” is enough.

Specific Acts of the Victim Known to the Defendant

Even when reputation or opinion is the only proper character method on direct, the defendant may sometimes offer specific acts of the victim for a different, non‑character reason:

• To show the defendant’s state of mind—that the defendant reasonably believed the victim was dangerous—if the defendant was aware of those specific acts.
• To show who was the first aggressor in some jurisdictions, under a non‑character theory.

Because the specific acts are not offered to prove the victim acted in conformity, they are analyzed under ordinary relevance and Rule 403, not the 404(a) character rules.

Rape and Sexual‑Assault Cases: Interaction with the Mercy Rule

In sexual‑assault prosecutions, the defendant might try to use the Mercy Rule to attack the victim’s sexual character. FRE 412 (the rape shield rule), discussed later, sharply limits this. You should always ask:

• Is this being offered as victim‑character evidence under 404(a)?
• If so, does the rape shield rule independently bar it?

On the MBE, trying to introduce the victim’s promiscuity almost always collides with FRE 412.

Worked Example 1.1

David is charged with assaulting Victor. David claims self‑defense, arguing Victor attacked him first. David calls Wendy to testify that Victor has a reputation in their community for being a violent and aggressive person. Can the prosecution respond by calling Xavier to testify that David has a reputation for violence?

Answer:
Yes. By offering evidence of Victor’s character for violence, David has “opened the door” under FRE 404(a)(2)(B). This permits the prosecution to offer reputation or opinion evidence of the victim’s peacefulness and the defendant’s bad character for the same trait. Xavier’s testimony that David has a reputation for violence is proper rebuttal under FRE 404(a)(2)(B)(ii) and may be proved by reputation testimony under FRE 405(a).

Worked Example 1.2

Defendant is charged with aggravated assault. He calls a neighbor to testify: “In my opinion, Defendant is a peaceful person and has a reputation in our neighborhood for being non‑violent.” On cross‑examination, can the prosecutor ask, “Have you heard that Defendant broke a man’s jaw in a bar fight last year?”

Answer:
Yes. Once the defendant offers good‑character evidence for peacefulness, the prosecutor may cross‑examine the character witness about specific instances inconsistent with that trait, provided the prosecutor has a good‑faith basis. The question is allowed under FRE 405(a) to test the witness’s knowledge and the soundness of their opinion. The prosecutor, however, may not offer independent proof that the bar fight occurred if the witness denies knowledge.

Character Evidence in Civil Cases

The general propensity rule—no character to prove conduct—applies in civil cases as well (FRE 404(a)(1)). There is no civil “Mercy Rule.” A civil defendant cannot introduce evidence of their own carefulness, honesty, etc., simply to show they behaved accordingly on the occasion in dispute.

Examples:

• In a negligence case, the defendant cannot offer evidence that they are a “careful driver” to show they did not cause this accident.
• In a fraud case, the plaintiff cannot offer evidence that the defendant is “dishonest” to show they committed fraud here.

The central civil exception is when character is directly in issue.

Key Term: Essential‑Element Character Evidence
Character evidence offered because a character trait is itself an element of a civil claim or defense (e.g., truth in defamation, competence in negligent hiring), allowing proof by reputation, opinion, and specific acts.

Character as an Essential Element (FRE 404(a)(3), 405(b))

In rare civil actions, the substantive law makes a character trait an element of the claim or defense. In these cases, character is not being used as circumstantial evidence; it is the very thing to be proved. Typical examples:

• Defamation:
  • Plaintiff sues over statements accusing them of dishonesty. If the defendant pleads truth as a defense, the plaintiff’s character for honesty is in issue.
• Negligent hiring or entrustment:
  • A plaintiff alleges the employer negligently hired a dangerous employee, or negligently entrusted a car to a reckless driver. The employee’s or driver’s character for violence or recklessness is an element.
• Child custody or parental fitness:
  • A parent’s character for care, stability, or non‑violence is part of determining the child’s best interests.

When character is an essential element, FRE 405(b) allows proof by:

• Reputation.
• Opinion.
• Specific instances of conduct on direct examination.

This is the main civil context where specific acts are allowed affirmatively on direct as character proof.

Worked Example 1.3

Publisher defends a defamation suit by claiming that a book’s statement that Author “habitually plagiarizes” is true. Publisher offers evidence that on five prior occasions Author copied paragraphs from other works without attribution.

Answer:
Admissible. In a defamation case where truth is pled as a defense, the plaintiff’s character for the trait described—in this case, honesty or literary integrity—is in issue. Under FRE 405(b), character as an essential element may be proved by specific instances. The prior plagiarism episodes directly show the truth of the allegedly defamatory statement.

Exceptions for Non‑Propensity Purposes (MIMIC Rule)

FRE 404(b) addresses other crimes, wrongs, or acts. Such evidence is not admissible to prove character in order to show action in conformity. But the same acts may be admissible for a non‑propensity purpose.

Key Term: MIMIC Rule
A mnemonic for common non‑propensity purposes under FRE 404(b): Motive, Intent, absence of Mistake, Identity, and Common plan or scheme. Other permissible purposes include opportunity, preparation, knowledge, and more.

Crucially:

• The other acts can be prior or subsequent to the charged conduct.
• They need not have resulted in a conviction.
• The court must find sufficient evidence for a jury to conclude the act occurred (a preponderance standard).

Common non‑propensity purposes include:

• Motive: to show why the defendant committed the act.
• Intent: to show the defendant acted with the required mental state, especially to rebut a claim of accident.
• Absence of mistake or accident: to show repeated “accidents” are no accident.
• Identity: to show that the defendant was the actor—often via a distinctive modus operandi.
• Common plan or scheme: to show the charged act is part of a larger scheme.

Remember also: opportunity, preparation, knowledge are spelled out in FRE 404(b)(2) and are fair game on the MBE.

Key Term: Other‑Acts Evidence (FRE 404(b))
Evidence of a person’s prior or subsequent crimes, wrongs, or acts offered for a proper non‑propensity purpose such as motive, intent, identity, or absence of mistake, not to show they are the “kind of person” who commits such acts.

Even when offered for a permissible purpose, other‑acts evidence must pass Rule 403: its probative value must not be substantially outweighed by unfair prejudice.

• In criminal cases, the prosecution must give reasonable pretrial notice of its intent to offer 404(b) evidence, unless the court excuses notice for good cause (FRE 404(b)(3)).

Worked Example 1.4

Defendant is charged with arson for allegedly burning down his failing business to collect insurance money. Defendant claims the fire was accidental. The prosecution seeks to introduce evidence that Defendant’s previous two businesses also burned down under suspicious circumstances shortly after Defendant took out large fire insurance policies. Is this evidence likely admissible?

Answer:
Yes, likely. The prior suspicious fires are inadmissible to prove that Defendant is the “kind of person” who commits arson, but they are admissible for non‑propensity purposes: to show motive (insurance money), intent and absence of mistake (repeated fires under similar circumstances), and possibly a common plan or scheme. The court must still conduct Rule 403 balancing, but the substantial probative value on these issues typically outweighs the prejudice.

Worked Example 1.5

Defendant is charged with bank robbery. The robber wore a clown mask and escaped in a unique, brightly painted van. The prosecution offers evidence that six months earlier, a different bank in the same city was robbed by a person wearing an identical clown mask who escaped in what eyewitnesses described as the same unique van, and that Defendant was convicted of that earlier robbery. Is this evidence admissible?

Answer:
Yes, to prove identity. The highly distinctive combination of disguise and getaway vehicle serves as a “signature” modus operandi. Under FRE 404(b), the earlier robbery is admissible, not to show Defendant’s general robbery character, but to link Defendant to the current robbery via a unique method. The court should give a limiting instruction telling the jury to use the evidence only for identity, not propensity.

Limited Admissibility and Jury Instructions

Because 404(b) evidence is dangerous, courts routinely rely on FRE 105:

Key Term: Limiting Instruction
A direction to the jury that particular evidence may be considered only for a specified proper purpose (e.g., motive or identity) and not for an improper one (e.g., propensity).

When evidence is admitted for one purpose but not another, upon request the court must instruct the jury on the limited purpose and, when appropriate, restrict the evidence’s scope.

Habit Evidence

Evidence of a person’s habit or an organization’s routine practice is treated differently from character. FRE 406 expressly permits habit evidence to prove conduct in conformity with the habit on a particular occasion.

Key Term: Habit Evidence
Evidence of a person’s regular, specific, semi‑automatic response to a repeated situation (e.g., always fastening a seatbelt, always checking a machine’s emergency shut‑off), used to show they likely acted the same way on the occasion in question.

Habit is more predictive than general character because it reflects invariable, routine behavior in a specific context.

Key features of habit:

• Specificity: the conduct must be narrowly defined (e.g., “always stops fully at the Main Street stop sign,” not “careful driver”).
• Regularity: the response occurs frequently and consistently.
• Unreflective / semi‑automatic: the behavior is almost automatic, not a conscious moral choice each time.

Habit evidence:

• May be admitted without corroboration and without eyewitnesses.
• Applies to both individuals and organizations (routine practice).

Contrast with character:

• “He is a careful driver” = character → inadmissible to prove careful driving in this accident.
• “He always signals and checks his mirrors before changing lanes” = potential habit → admissible to show he likely followed that practice during this lane change.

Worked Example 1.6

In a negligence trial after a slip‑and‑fall, Store seeks to show it probably inspected the aisle shortly before the fall. Store offers testimony that its written policy requires clerks to inspect each aisle at the top of every hour, and that contemporaneous records are kept of those inspections. An employee testifies that he followed that procedure every day for the past year.

Answer:
Likely admissible as evidence of Store’s routine practice. The specific, regularly followed inspection procedure is exactly the sort of semi‑automatic practice Rule 406 contemplates. The evidence is admissible to show that Store probably conducted its hourly inspection on the day of Plaintiff’s fall.

Sexual Misconduct Evidence

Sexual‑offense cases raise special evidentiary issues. The key provisions are:

• FRE 412: rape shield rule (victim’s sexual behavior or predisposition).
• FRE 413–415: similar‑acts evidence in sexual‑assault and child‑molestation cases, including propensity use.

Victim's Sexual Behavior or Predisposition (Rape Shield Law)

Key Term: Rape Shield Law
A rule—like FRE 412—that generally bars evidence of an alleged victim’s past sexual behavior or sexual predisposition in cases involving sexual misconduct.

FRE 412 applies in criminal and civil proceedings involving alleged sexual misconduct. It broadly bars:

• Evidence of the victim’s other sexual behavior (e.g., sexual history, activities with others).
• Evidence of the victim’s sexual predisposition (e.g., dress, lifestyle, reputation).

This evidence is not admissible for propensity purposes—e.g., to show the victim is “promiscuous” and therefore likely consented.

Criminal Case Exceptions (FRE 412(b)(1))

In a criminal sexual‑misconduct case, specific instances of the victim’s sexual behavior may be admitted only if:

• Offered to prove someone other than the defendant was the source of semen, injury, or other physical evidence; or
• Offered to prove consent with respect to the defendant, based on sexual behavior between the victim and the defendant; or
• Exclusion would violate the defendant’s constitutional rights (often the Confrontation Clause).

Reputation evidence is almost never permitted in criminal cases under FRE 412.

Civil Case Standards (FRE 412(b)(2))

In civil sexual‑misconduct cases:

• Evidence of a victim’s sexual behavior or predisposition is admissible only if its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party. This is a reverse‑403 standard favoring exclusion.
• Evidence of the victim’s reputation is admissible only if the victim has put their reputation in controversy.

Procedurally, FRE 412 requires a written motion, notice to the victim, and an in‑camera hearing before such evidence is admitted.

On the MBE, evidence of an alleged victim’s promiscuity is almost always inadmissible absent a narrow FRE 412 exception.

Defendant's Similar Crimes in Sexual‑Assault and Child‑Molestation Cases

FRE 413–415 carve out a major exception to the general ban on propensity evidence.

• FRE 413: In a criminal case in which the defendant is accused of sexual assault, evidence that the defendant committed any other sexual assault is admissible and may be considered on any matter to which it is relevant, including propensity.
• FRE 414: Similar rule for criminal cases involving charges of child molestation.
• FRE 415: In a civil case based on a claim of sexual assault or child molestation, evidence that the party committed other such acts is admissible.

These rules expressly allow the jury to reason that a defendant who committed prior sexual assaults is more likely to have committed the charged act.

Even here, Rule 403 still applies; courts may exclude highly inflammatory prior acts if the risk of unfair prejudice substantially outweighs the probative value.

Worked Example 1.7

Defendant is on trial for sexual assault of an adult. The prosecution offers evidence that Defendant sexually assaulted another adult five years ago, resulting in a conviction. The evidence is offered to show that Defendant has a propensity to commit sexual assaults. Defendant objects based on FRE 404’s propensity ban.

Answer:
The objection should be overruled. FRE 413 allows evidence that a defendant in a sexual‑assault prosecution committed other sexual assaults and permits the jury to consider that evidence for any relevant purpose, including propensity. The court must still perform Rule 403 balancing, but FRE 413 overrides the usual 404(a) prohibition on propensity in this narrow context.

Character for Truthfulness (Impeachment) vs Substantive Character

Character for truthfulness is treated differently from character used to show conduct in conformity.

Key Term: Character for Truthfulness (Impeachment)
Evidence that a witness is honest or dishonest, introduced to suggest they are more or less likely to testify truthfully. It goes only to credibility, not to whether the witness did the acts alleged in the case.

Key points:

• Any witness—civil or criminal, party or not—puts their credibility in issue by testifying.
• Under FRE 608:
  • A witness’s character for truthfulness may be attacked (or supported) by reputation or opinion testimony about that trait.
  • On cross‑examination only, a witness (including a character witness) may be asked about specific acts that are probative of untruthfulness (e.g., lying on a job application, falsifying records), but the examiner is stuck with the answer (no extrinsic proof).
• Under FRE 609, certain criminal convictions may be used to impeach by showing a witness’s untruthful character.

This impeachment use of character:

• Is not barred by the propensity rule because it is directed at whether the witness is believable, not at whether they committed the act at issue.
• Is distinct from substantive character evidence under FRE 404.

On the MBE, be careful: an answer choice saying “inadmissible improper character evidence” may be wrong if the evidence is offered solely to impeach the witness’s truthfulness.

Worked Example 1.8

Plaintiff sues Driver for negligence. On cross‑examination, Driver testifies that he has “never lied in any important matter.” Plaintiff then calls a witness to testify that Driver has a bad reputation in the community for honesty. Driver objects that this is inadmissible character evidence in a civil case.

Answer:
Overruled. The testimony is offered not to show that Driver drove negligently on the occasion in question, but to attack his character for truthfulness as a testifying witness. Character for truthfulness is always relevant to credibility and may be shown by reputation evidence under FRE 608(a), even in civil cases.

Key Point Checklist

This article has covered the following key knowledge points:

• Character evidence is generally inadmissible to prove conduct in conformity therewith (propensity) under FRE 404(a)(1).
• In criminal cases, the defendant may invoke the Mercy Rule and offer reputation or opinion evidence of their own relevant good character; doing so opens the door to prosecution rebuttal.
• A criminal defendant may offer reputation or opinion evidence of the victim’s relevant bad character (e.g., violence in a self‑defense case); the prosecution may then rebut with evidence of the victim’s good character and the defendant’s bad character for the same trait.
• In homicide cases, once the defendant introduces any evidence that the victim was the first aggressor, the prosecution may offer evidence of the victim’s peaceful character, even if the defendant has not introduced victim‑character evidence.
• In civil cases, character evidence to show propensity is almost never permitted; the main exception is when character is an essential element of a claim or defense (defamation, negligent hiring/entrustment, child custody), in which case it may be proved by reputation, opinion, and specific acts.
• Other‑acts evidence under FRE 404(b) may not be used for propensity, but is admissible for non‑propensity purposes such as motive, intent, absence of mistake, identity, or common plan or scheme (MIMIC), subject to Rule 403 and, in criminal cases, a notice requirement.
• Habit and routine practice evidence (FRE 406) is distinct from character; it involves a specific, regular, semi‑automatic response to a particular situation and is admissible to show conduct in conformity.
• Rape shield rules (FRE 412) broadly bar evidence of an alleged victim’s sexual behavior or predisposition, subject to narrow exceptions in criminal cases and a stringent reverse‑403 standard in civil cases.
• FRE 413–415 permit evidence of a defendant’s similar sexual assaults or child molestations in cases involving such allegations, even for propensity, again subject to Rule 403.
• Character for truthfulness is an impeachment concept governed by FRE 608–609: reputation and opinion testimony about honesty/dishonesty is allowed, as are certain questions about specific dishonest acts on cross‑examination and some criminal convictions.

Key Terms and Concepts

• Character Evidence
• Propensity
• Mercy Rule
• Essential‑Element Character Evidence
• Other‑Acts Evidence (FRE 404(b))
• MIMIC Rule
• Habit Evidence
• Rape Shield Law
• Limiting Instruction
• Character for Truthfulness (Impeachment)