Propensity: How Character Cannot Be Used
Character Evidence is one of the hardest concepts to grasp and pick up on; but if you can remember the word ‘propensity,’ and understand it, you will be in a much better position to recognize character. Propensity means “[a] natural tendency to behave in a particular way; esp., the fact that a person is prone to a specific type of bad behavior.”[1] Propensity is the way in which character evidence CANNOT be used.[2] Federal Rule of Evidence (FRE) 404(a)(1) states that “[e]vidence 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.”[3] This is always true in civil cases. However, there are exceptions for a criminal case:
Exceptions in a Criminal Case: When Propensity-Based Character Can Be Used
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.[4]
As a defense attorney, you want to be very mindful not to “open the door” to your client’s character. What it means to “open the door” is essentially when you, as your client’s attorney, present character evidence (this can be in the form of positive or negative character evidence) which then gives your opposing counsel the ability to cross examine or bring character into their rebuttal case.[5] There are a lot of reasons never to put your client on the stand – this is just one of many. It is important to note the exceptions regarding a victim’s character.
Remember, if a defendant is going to be presenting character evidence, then that character evidence must be in terms of the defendant’s (or in certain circumstances the victim’s) pertinent trait. What is a pertinent character trait? It is one that is inherent to the crime. For example, in a homicide case the pertinent character trait would be violence (or as to the opposite peacefulness), in a tax fraud case the pertinent character trait would be honesty (or dishonesty).[6]
One of the only times in which a prosecutor is allowed to be the first to bring up character is when there is a criminal homicide case and there the victim is asserting self-defense.[7]
When Character Is Admissible
Outside the bounds of FRE 404(a)(2) Character evidence is admissible for non-propensity purposes in other situations under FRE 404(b) states:
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. 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 the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.[8]
If you can offer character evidence for a purpose other than propensity (e.g., to prove someone’s motive, the opportunity some has, someone’s intent, their preparation, a plan, their knowledge, identity, etc.), barring the constraints of FRE 401 and FRE 403, it will likely be admissible.
Finally remember that if character evidence is admissible it is limited by the bounds of FRE 401, FRE 403, and FRE 405. FRE 405 encompasses the allowed methods of proving character and states:
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissable, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.[9]
Remember to always ask yourself the following questions:
- What is the character evidence I want to offer?
- Is it a pertinent character trait to the crime?
- What is the purpose for which I am offering the character evidence?
- Who am I offering the character evidence under?
- Am I the prosecutor trying to offer it before defense has opened the door?
- Am I defense counsel and intentionally opening the door?
- How am I offering it?
[1] Propensity, Black’s Law Dictionary (11th ed. 2019)
[2] Fed. R. Evid. 404.
[3] Id. (emphasis added)
[4] Id.
[5] Id.
[6] Deborah Jones Merritt & Ric Simmons, Learning Evidence: From the Federal Rules to the Courtroom, 334 (5th ed. 2022)
[7] Fed. R. Evid. 404.
[8] Fed. R. Evid. 404.
[9] Fed. R. Evid. 405.
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