7. Things that Look Like Character Evidence But Aren’t
The admissibility of evidence that a person (usually the defendant) behaved badly may or may not be determined under the character evidence rules. Suppose a person is charged with vehicular homicide and the prosecutor wants to introduce evidencethat the defendant was texting while driving. If it's at the time of the accident, it's admissibility will be determined by the regular rules of relevancy. If the testimony is that the defendant frequently texted while driving, it's classic character evidence. But ifthe evidence is that the defendant texted while driving on two specific prior occasions, its admissibility will be determined by Rule 404(b). If the testimony is that the defendant always had her cell phone in her hand texting while driving, its admissibility will be determined by Rule 406 on habits.
Rule 404(b) deals primarily with the admissibility of evidence of specific acts of criminal behavior by a criminal defendant which were committed prior to the crime for which s/he is on trial. However, the rule is not limited to this context. It may also apply to acts that are immoral or antisocial (but not criminal), to acts by persons other than criminal defendants, such as witnesses or civil litigants, and to acts committed contemporaneously with or after the crime charged. But 95% of the time, rule 404(b) comes into play when the prosecutor in a criminal case offers evidence that the defendant has committed a prior criminal act.
When evidence is introduced that a defendant committed a prior crime, it may be relevant to (have a tendency to prove) more than one issue. Evidence that the defendant served 60 days in jail for theft helps prove that he is a low-life criminal, and also gives him an alibi for other crimes occurring while he was locked up.
When a prosecutor offers evidence of the accused’s prior criminal behavior, everyone in the courtroom knows it’s for the purpose of blackening the defendant's character, an issue on which is of course not admissible. So, the objection by the defense is usually made on character evidence grounds, citing either Rule 404(a) or 404(b), and arguing that the evidence goes to prove character and is therefore inadmissible.The defense could also object on
Rule 403 grounds that the evidence has low probative value (remote in time and involves different events) and is highly prejudicial because it paints the defendant as a repeat criminal, but this is not as good an objection for two reasons: 1) Rule 403 says merely that the judge MAY exclude prejudicial evidence, whereas Rule 404 says character evidence IS NOT admissible; and 2) the rule of specificity says we should cite the more specific rule rather than the more general one.
The prosecutor’s problem is to convince a judge that there is a second legitimate issue to which the evidence is also relevant, and that this second issue is important enough. The usual source for this argument is to pick the most plausible one from the list in Rule 404(b), i.e., to use 404(b) as a response to an objection, and characterize the listed reasons as “exceptions” to the prohibition against character evidence.
In reality, the evidence is likely to be used by the jury as character evidence, and we suspect that the 404(b) reason invoked by the prosecutor is a pretext and the prosecutor does not really need it to prove identity, motive, intent, etc. So the argument about admissibility shifts to Rule 403 -- is the reason asserted by the prosecutor really a contested and important issue (high probative value) or merely a technically disputed issue like identity when we all know the defense is self-defense (low probative value)? If the former, the evidence will usually be admitted; if the latter, it is excluded. And it’s the prosecutor’s burden, so if we are unsure, it is not admissible.
Look at problem 7A, part one. Assume the defense objects to the evidence in A (Smallwood incident) under Rule 403 as having little probative value and significant prejudicial effect, and to B (drugs) under Rule 404(a) as improper character evidence.
How should the prosecutor respond to each objection? When you think you know the answer, click here.