RULE 404. CHARACTER EVIDENCE; OTHER CRIMES, WRONGS OR ACTS
Effective Date: 3/1/2022
(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 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:(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.(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.
(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.
Rule 404 was amended, effective March 1, 1990, March 1, 1994, March 1, 2008; March 1, 2014; March 1, 2022
Character evidence is not admissible when its purpose would be to prove circumstantially how a person acted on a particular occasion. Whenever the character of a person is in issue, as in a defamation case, this exclusion does not apply.
Paragraph (a)(2) allows the accused to offer circumstantial evidence of character.Traditionally, this has been allowed, for the objection to character evidence in general is not that it has no relevancy but that its probative value, when weighed against possible prejudice, does not warrant admission. If the accused offers such evidence, the issue of prejudice is no longer a factor.
Paragraph (a)(2)(B) was amended, effective March 1, 2008, to add clarifying language on victim character evidence.
Paragraph (a)(3) provides that, in dealing with impeachment of a witness, Rules 607, 608, and 609 state the applicable rules. The present rule retains its force, and should be consulted whenever the witness is also a party whose actions are sought to be proved.
Subdivision (b) restates the general rule, but continues to provide that character evidence offered for other purposes, e.g., motive, intent, or identity, is admissible. But the mere labeling of such evidence does not automatically bring admission.
Subdivision (b) was amended, effective March 1, 1994, to follow the 1991 federal amendment, by adding a pretrial notice requirement in criminal cases. The amendment is not intended to redefine what evidence would otherwise be admissible under Rule 404(b).
Subdivision (b) was amended, effective March 1, 2022, to impose special notice requirements on the prosecution in a criminal case.
Rule 404 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Minutes of Joint Procedure Committee of January 28, 2021, page 23; April 26-27, 2012, page 14; January 25, 2007, pages 10-11; September 28-29, 2006, pages 13-14; April 29-30, 1993, page 10; January 28-29, 1993, pages 11-12; March 24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, pages 20, 21. Fed.R.Ev. 404; Rule 404, SBAND proposal.
STATUTES AFFECTED:
CONSIDERED: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 27-20-33, 27-20-52, 42-02-07.
CROSS REFERENCE: N.D.R.Ev. 412 (Admissibility of Alleged Victim's Sexual Behavior or Alleged Sexual Predisposition in Criminal Proceeding), N.D.R.Ev. 607 (Who May Impeach), N.D.R.Ev. 608 (Evidence of Character and Conduct of Witness), and N.D.R.Ev. 609 (Impeachment by Evidence of Conviction of Crime).