- Brian Foley
Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 404(a)
I’m going to break up Rule 404 into part (a) and part (b) because it is a large rule and part (b) is kind of like a separate rule altogether. Rule 404 is probably the most argued over rule in Criminal Law other than the rule against hearsay. Rule 404 is the rule of character evidence. Particularly this is the rule which keeps opposing lawyers from devolving every proceeding into a match of “Oh yeah? Well what about all those other bad things you did?” Or the opposite, “Well I’ve been an eagle scout and I read to homeless children every Wednesday, so I couldn’t have done what you said!”
The idea here is that it just isn’t necessarily true that people always act according to their customary behavior.
Evidence of a person’s character or a specific character trait cannot be offered to prove they likely did something similar on a particular occasion, namely the lawsuit or criminal case you are arguing about. This used to be called “Character in conformity” but now the rule uses the phrase, “to prove that on a particular occasion the person acted in accordance with the character or trait.” RULE 404(a)(1).
The basic point here is that you don’t assume someone did something wrong because they have done something wrong before and you don’t assume someone did something right because they have done something right before. You have to judge each case based on the evidence of that particular case and not others. For example, if it was generally admissible in a criminal case that a defendant was previously convicted of Murder, what chance would someone have that the jury would consider the evidence only of the current case in deciding if there was evidence beyond a reasonable doubt?
Of course the first exception to the rule immediately follows and it says that an accused in a criminal case may offer evidence of his pertinent trait and if the evidence is admitted then the prosecutor may admit evidence to rebut it.
The second exception is for civil cases where someone accused of immoral behavior (technically moral turpitude) may offer evidence of a pertinent character trait and the opposing party may rebut it.
A character trait is some aspect of the past behavior or personality of a party, witness, or criminal defendant. Reid v. State, 964 S.W.2d 723 (Tex. App. – Amarillo 1998, pet. ref’d). For example, in an Assault case evidence of the character trait of peacefulness would be relevant for a defendant to show that he did not in fact brutally assault the person named as the complainant. In a DWI case a defendant’s character for sobriety is relevant. And where a prosecutor may not admit evidence of prior instances of insobriety or drunkenness a criminal defendant is allowed to offer evidence of sobriety first and then a prosecutor may offer prior drunkenness as rebuttal evidence.
While it may seem like a good idea to tell a jury all about what a wonderful person you are, the rule doesn’t allow for defense to offer evidence of good character totally unchecked. The character trait must be for something that is related to the contested elements in the trial. For example, in a DWI case it probably isn’t a “pertinent character trait” that the defendant has an excellent reputation for peacefulness.
Some other examples are:
· Being a “good parent” wasn’t the proper character trait for a defendant to offer in a sexual assault trial. Holt v. State, 912 S.W.2d 294 (Tex. App. –San Antonio 1995, pet. ref’d).
· Being a “warm and carring person” wasn’t relevant to elements of Murder. Mowbray v. State, 788 S.W.2d 658 (Tex. App. Corpus Christi 1990, pet. ref’d).
· The defendant’s lack of use of selling drugs was a pertinent character trait in a possession of marihuana case. Brazelton v. State, S.W.2d 644, 650 (Tex. App. – Fort Worth 1997, no pet.)
The court can be reversed if they do not let a criminal defendant offer evidence when it IS related to a pertinent character trait.
A Witness may have their character attacked under Rule 607(Impeachment), 608(Reputation evidence for truthfulness), and 609(Criminal Convictions). But we will cover those another day.
The Texas Rule 404 has a special section for character evidence in murder cases in part because the Texas Code of Criminal Procedure § 38.36 which states:
In all prosecutions for murder, the state or defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
In our next article on 404(b) you will see why many people refer to this section as the murder 404(b) exception.
404(a) states that the defendant may offer evidence to show that the complainant or victim was the first aggressor and the prosecutor may rebut the same.
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. 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.
(2) Exceptions for an Accused.
(A) In a criminal case, 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) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party’s pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it.
(3) Exceptions for a Victim.
(A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
(B) In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(C) In a civil case, a party accused of assaultive conduct may offer evidence of the victim’s trait of violence to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim’s trait of peacefulness.
(4) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(5) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other 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; Notice in Criminal Case. 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. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.