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ARE Rule 404: Character evidence not admissible to prove conduct; exceptions; other crimes, wrongs, or acts

Alabama Rules of Evidence

Article IV. Relevancy and Its Limits

Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes, wrongs, or acts

(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) CHARACTER OF ACCUSED. Evidence of character offered by an accused, or by the prosecution to rebut the same;

(2) CHARACTER OF THE VICTIM.

(A) In criminal cases. (i) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or (ii) evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(B) In civil cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self-defense by a party accused of assaultive conduct, or evidence of character for peacefulness to rebut the same;

(3) CHARACTER OF WITNESS. Evidence of the character of a witness, as provided in Rules 607, 608, 609, and 616.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Advisory Committee’s Notes

This rule undertakes to answer the basic question of when evidence of character may be admissible. Once character evidence is determined to be admissible under (a), one generally must consult Ala.R.Evid. 405 for the appropriate medium through which the character may be proven – i.e., reputation, opinion, or conduct. It is intended that Rule 404(b) will be applicable in civil as well as criminal cases.

Section (a). Character evidence generally. Rule 404, like its federal counterpart, begins with what may be termed a “general exclusionary rule of character.” As a general rule, whether in civil or criminal cases, character evidence is not admissible when offered to prove that a person is of a particularly good or bad character and that the person acted in conformity with that character on the occasion that is the basis of the litigation. This exclusionary rule has been long recognized in Alabama case law. See C. Gamble, Character Evidence: A Comprehensive Approach 3 (1987). In a criminal case, for example, the prosecution may not take the initiative to prove the accused’s bad character as a basis for the jury to infer that the accused committed the now-charged crime. Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Ex parte Killough, 438 So.2d 333 (Ala.1983); C. Gamble, McElroy’s Alabama Evidence § 27.02(1) (4th ed. 1991). Likewise, a party to a civil action may not prove an opponent’s bad character for negligence as a basis for the factfinder to infer that the opponent was negligent on the occasion that serves as the basis of the cause of action. Smith v. Civil Service Bd. of the City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974); Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970).

Subsection (a)(1). Character of accused. The criminally accused is provided special dispensation from the general exclusionary rule regarding character. Under the power historically granted by a principle that has come to be termed the “mercy rule,” the criminal defense may prove the accused’s good character. The accused’s evidence of good character may serve as circumstantial proof that the accused did not commit the crime charged. Michelson v. United States, 335 U.S. 469, 479 (1948).

This right of the defense to prove the accused’s good character, as evidence of innocence, has long existed under Alabama law. See, e.g., Beaird v. State, 215 Ala. 27, 109 So. 161 (1926); Felix v. State, 18 Ala. 720 (1851). See also C. Gamble, Character Evidence: A Comprehensive Approach 48 (1987). The mediums of proof through which the accused may evidence good character remain unchanged. The criminal defendant will continue to be permitted to prove good character through general reputation as a whole. Elmore v. State, 216 Ala. 247, 113 So. 33 (1927); C. Gamble, McElroy’s Alabama Evidence § 27.01(2) (4th ed. 1991). Contra Fed.R.Evid. 404(a)(1). The defense, of course, may limit reputation testimony to a trait that is pertinent to the crime charged. However, this is not required. Unlike the corresponding Federal Rule of Evidence, this rule does not permit a character witness to give an opinion of the accused’s character. The character witness may testify as to reputation only. Jones v. State, 53 Ala.App. 690, 304 So.2d 34, cert. denied, 293 Ala. 261, 304 So.2d 38 (1974). See C. Gamble, McElroy’s Alabama Evidence § 27.01(1) (4th ed. 1991).

If the criminal defense chooses to prove the accused’s good character through one of the permissible mediums, the prosecution may rebut with evidence of bad character. That right of rebuttal has received historic recognition under Alabama evidence law. Bedsole v. State, 274 Ala. 603, 150 So.2d 696 (1963); Pierce v. State, 228 Ala. 545, 154 So. 526 (1934). The rebuttal evidence, like the accused’s evidence of good character, must be offered through the medium of reputation. Because the mercy rule is a right of special dispensation afforded the criminal defendant, the defendant is allowed some measure of power to limit the breadth of the rebuttal. When the defense offers proof of the accused’s reputation for a particular trait, for example, the rebuttal testimony should be confined to the same trait or to a similar one. Thorn v. State, 450 So.2d 179 (Ala.Crim.App.1984); Martin v. State, 90 Ala. 602, 8 So. 858 (1891), overruled by Williams v. State, 140 Ala. 10, 37 So. 228 (1903).

It should be noted that the accused does not open the door for the prosecution to offer evidence of bad character, as set forth in Rules 404(a)(1) and 405(a), by taking the witness stand in his or her own behalf. Such testimony by the accused, however, would subject the accused to impeachment. Ala.R.Evid. 404(a)(3).

Subsection (a)(2). Character of victim. This subsection, as does its counterpart under the Federal Rules of Evidence, permits evidence of a victim’s character. It provides another exception to the Rule 404(a) exclusion under which evidence of a person’s character is generally excluded when offered to prove that the person acted in conformity therewith on a particular occasion. As to a victim of rape or assault with intent to rape, it is important to note that any Rule 404(a)(2) principles are preempted by contrary provisions found in the “rape shield” principle of Rule 412.

Admissibility of a victim’s character generally arises in both criminal and civil cases as described hereinafter.

(A) In criminal cases. In a criminal case, the accused may offer evidence that a victim of an alleged crime had a pertinent trait. Such evidence usually is offered in cases of homicide or assault where the accused pleads self-defense. In these cases, the character evidence is offered as a base from which circumstantially to infer that the victim was the first aggressor. Additionally, and not by virtue of the present rule, evidence that the victim had a bad character may go to show that the accused had reasonable grounds upon which to apprehend that the victim was about to do the accused immediate and serious bodily harm.

Generally, the evidence of a victim’s character allowed by this subsubsection must be in the form of testimony regarding reputation or testimony stating an opinion, in accordance with Rule 405(a). See Government of the Virgin Islands v. Carino, 631 F.2d 226 (3d Cir.1980); United States v. Kills Ree, 691 F.2d 412 (8th Cir.1982); E. Cleary, McCormick on Evidence § 193 (3d ed. 1984). Compare Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955) (holding that the accused in a homicide case may not prove the victim’s bad character via specific prior acts of misconduct); C. Gamble, McElroy’s Alabama Evidence § 26.01(1) (4th ed. 1991). Such proof would come through the testimony of a character witness for the defense who relates either the victim’s general reputation for a pertinent trait or the witness’s own opinion of the victim’s character for the pertinent trait.

Alabama case law permits a person charged with homicide or assault to prove, in support of a self-defense claim, that the alleged victim had a bad general reputation for violence. Williams v. State, 506 So.2d 368 (Ala.Crim.App.1986), cert. denied, 506 So.2d 372 (Ala.1987); Bankston v. State, 358 So.2d 1040 (Ala.1978). See also C. Gamble, McElroy’s Alabama Evidence § 33.01(1) (4th ed. 1991); H. Henry, Annotation, Admissibility of Evidence as to Other’s Character or Reputation for Turbulence on Question of Self-Defense by One Charged With Assault or Homicide, 1 A.L.R.3d 571 (1965). Unlike preexisting Alabama law, however, Rule 404(a)(2) contains no requirement that, as a condition precedent to admitting proof of the victim’s character for a pertinent trait, other evidence in the case must tend to show that the accused acted in self-defense. See Smith v. State, 466 So.2d 1026 (Ala.Crim.App.1985); Wright v. State, 252 Ala. 46, 39 So.2d 395 (1949). Allowing the accused to prove the victim’s character for a pertinent trait via a witness’s opinion, as opposed to proof in the form of general reputation, would be new to Alabama law. This rule would have no effect upon that body of Alabama law allowing the admission, under appropriate circumstances, of evidence of collateral difficulties between the victim and the accused. See, e.g., Walker v. State, 523 So.2d 528 (Ala.Crim.App.1988); Akers v. State, 399 So.2d 929 (Ala.Crim.App.1981). See also C. Gamble, McElroy’s Alabama Evidence § 45.06 (4th ed. 1991). Likewise unaffected is that line of Alabama precedent under which the accused in a homicide or assault case, where there is evidence of self-defense, may offer evidence that the victim had made prior threats to injure the one now accused. See Rutledge v. State, 88 Ala. 85, 7 So. 335 (1889). See also C. Gamble, McElroy’s Alabama Evidence § 262.01(9) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-4 (1987).

Once the accused has offered evidence to prove the victim’s character for a pertinent trait, the victim’s character for that trait then becomes material. Such materiality opens the door for the prosecution to present its own evidence of the victim’s character that tends to rebut the evidence offered by the defense. This right of rebuttal has historically been afforded the prosecution in Alabama. The only change in that rebuttal right made by Rule 404(a)(2) is to permit, in appropriate instances, evidence of the victim’s character to be offered in the form of opinion evidence. See Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Jimmerson v. State, 133 Ala.18, 32 So. 141 (1902).

Under Rule 404(a)(2)(A)(i), in any homicide prosecution, where the accused claims selfdefense and offers evidence that the victim was the first aggressor, the door is open for the state to rebut with evidence of the victim’s character for peacefulness. Unlike Rule 404(a)(2)(A)(i), which permits rebuttal with evidence of the victim’s character only after the accused has offered evidence of the victim’s character, Rule 404(a)(2)(A)(ii) allows the prosecutor to prove that the victim possessed the trait of peacefulness, no matter what kind of evidence is used by the accused to prove that the victim was the first aggressor in support of a claim of self-defense in a homicide case. The triggering evidence that permits rebuttal by evidence of the victim’s character could be evidence of nothing more than a prior threat by the victim against the accused. See 1A J. Wigmore, Wigmore on Evidence § 63 (Tillers rev. 1983); E. Cleary, McCormick on Evidence § 193 (3d ed. 1984). This right of rebuttal is new to the law of Alabama; heretofore, only when the accused has presented evidence that the victim was of bad character has the prosecution been free to offer evidence of good character to rebut the evidence that the victim had been the first aggressor. See C. Gamble, McElroy’s Alabama Evidence § 33.03(1), 33.03(5) (4th ed. 1991).

(B) In civil cases. Rule 404(a)(2)(A) applies only to criminal cases. Rule 404(a)(2)(B), on the other hand, affirms the preexisting line of Alabama authority that permits the civil defendant, when self-defense is at issue, to present evidence that an assault victim had a bad general reputation in regard to peace and quiet, violence, or similar trait. Butler v. Hughes, 264 Ala. 532, 88 So.2d 195 (1956); Cain v. Skillin, 219 Ala. 228, 121 So. 521 (1929). See also C. Gamble, McElroy’s Alabama Evidence §§ 33.01(1), 34.01 (4th ed. 1991). Under Rule 404(a)(2)(B), the victim’s character for a pertinent trait is also provable via the character witness’s opinion. See Ala.R.Evid. 405(a).

Subsection (a)(3). Character of witness. This subsection, like its counterpart under the Federal Rules of Evidence, recognizes a third exception to the Rule 404(a) principle calling for the general exclusion of character evidence. Such evidence is admissible when relevant to the credibility of a witness, as provided in Rules 607, 608, 609, and 616. This admissibility of character evidence for impeachment is consistent with preexisting Alabama law. See C. Gamble, Character Evidence: A Comprehensive Approach 56 (1987) (observing that whenever a witness takes the stand, whether the witness is a party or not, a limited aspect of the witness’s character is placed in issue – i.e., propensity for telling the truth). See also Smitherman v. State, 521 So.2d 1050 (Ala.Crim.App.1987), cert. denied, 521 So.2d 1062 (Ala.1988); C. Gamble, McElroy’s Alabama Evidence § 140.01 (dealing with impeachment by evidence of reputation), and § 145.01 (dealing with impeachment by evidence of a criminal conviction) (4th ed. 1991).

Section (b). Other crimes, wrongs, or acts. Rule 404(a) establishes the concept, applicable in both criminal and civil cases, that evidence of collateral conduct generally is inadmissible when offered to prove that the person committing the conduct is of a certain character and, consequently, acted in keeping with that character on the occasion of the act now at issue in the litigation. Section (b), like its federal counterpart, makes a specific application of the general principle of Rule 404(a); it provides specifically that evidence of collateral crimes, wrongs, or other acts is not admissible to prove character as a basis for implying that conduct on a particular occasion was in conformity with it. Such a general exclusionary rule, applicable to character evidence in the form of specific conduct, has long been embraced by the evidence law of Alabama. See, e.g., Ex parte Killough, 438 So.2d 333 (Ala.1983) (first appellate decision specifically recognizing McElroy language referring to this as a “general exclusionary rule”); Jackson v. Lowe, 48 Ala.App. 633, 266 So.2d 891 (1972) (recognizing application of this general exclusionary rule in civil cases); Roberson v. Ammons, 477 So.2d 957 (Ala.1985). See also C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (recognizing the general exclusionary rule as applied in criminal cases) and § 34.01 (discussing the general exclusionary rule applied in civil cases) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 4-4 (1990) (discussing the general exclusionary rule and ways to circumvent it).

The general rule excluding character evidence does not bar evidence of specific acts when that evidence is offered for some purpose other than the impermissible one of proving action in conformity with a particular character. While section (b) does not purport to provide an exhaustive listing of proper purposes, it states that proper purposes may include proving such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Admitting evidence of specific conduct for a limited purpose, other than to prove character and conformity therewith, is consistent with preexisting Alabama law in both criminal and civil cases. Sessions Co. v. Turner, 493 So.2d 1387 (Ala.1986) (other misrepresentations held admissible to prove prerequisite knowledge in fraud case); Averette v. State, 469 So.2d 1371 (Ala.Crim.App.1985) (evidence admissible in criminal case to prove knowledge); Ex parte Cofer, 440 So.2d 1121 (Ala.1983) (dealing with intent as a purpose for admitting evidence of the accused’s collateral crimes); Nicks v. State, 521 So.2d 1018 (Ala.Crim.App. 1987) (evidence of other crimes admissible to prove plan, design, or scheme), aff’d, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 (1988); Ford v. State, 514 So.2d 1057 (Ala.Crim.App.) (dealing with motive as a permissible purpose for admitting evidence of the accused’s collateral crimes), cert. denied, 514 So.2d 1060 (Ala.1987); Ex parte Arthur, 472 So.2d 665 (Ala.1985) (containing an instructive discussion of the identity purpose). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1978, 40 Ala.L.Rev. 95, 126 (1988); C. Gamble, Character Evidence: A Comprehensive Approach 14 (1987); W. Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984); C. Gamble, Prior Crimes as Evidence in Present Criminal Trials, 1 Campbell L. Rev. 1 (1979); E. Zipp, Annotation, Admissibility of Evidence of Other Crimes, Wrongs or Acts Under Rule 404(b) of Federal Rules of Evidence, in Civil Cases, 64 A.L.R.Fed. 648 (1983).

The “provided” clause of section (b) requires pretrial notice to the accused of the prosecution’s intent to use evidence of collateral misconduct. This “provided” clause is based upon an amendment to the corresponding federal rule adopted in 1991. See Fed.R.Evid.
404(b).