12 Character, similar occurrences, and habit (FRE 404–406, 413–415)
Restricted access

The propensity rule generally prohibits evidence that because a person acted in a given way on other occasions he more likely acted that way on the material occasion. If a character trait is itself in issue, then the rule does not apply; the trait may be proved like any other fact.

In some settings, propensity evidence has considerable probative value. But it risks biasing the fact-finder against an accused and can be time-consuming and distracting.

Many jurisdictions have adopted exceptions, of varying breadth, for acts of sexual misconduct.

An accused may present evidence of a pertinent trait of his character or evidence that an alleged victim of a violent crime was violent. In response to the latter, the FRE allow evidence of the accused’s violent character. If a homicide defendant contends that the victim was the first aggressor, the prosecution may present evidence of the victim’s peacefulness.

When one of these exceptions applies, reputation or opinion evidence can usually be admitted to prove, or rebut, the pertinent character trait. A character witness may be cross-examined about particular acts.

Rape-shield laws exclude almost all evidence of an alleged rape victim’s prior sexual conduct; occasionally, however, fairness demands that such evidence be admissible.

The propensity rule does not bar evidence of prior acts on non-propensity grounds— such as to show motive, identity, or intent.

Evidence of habit (or routine practice), often characterized by specificity of stimulus and regularity of response, is admissible to prove action in accordance with the habit.

You are not authenticated to view the full text of this chapter or article.

Access options

Get access to the full article by using one of the access options below.

Other access options

Redeem Token

Institutional Login

Log in with Open Athens, Shibboleth, or your institutional credentials

Login via Institutional Access

Personal login

Log in with your Elgar Online account

Login with you Elgar account
Advanced Introductions