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The admissibility of character evidence is governed by Federal Evidence Rules 404, 405, 608, and 609.

Different paragraphs of these rules apply depending on whether the witness is asked about reputation or other opinion evidence, or to testify to matters extrinsic to the issues being tried.

Admissibilty may also hinge on whether the questioning occurs during direct or cross-examination, and on whether prior evidence concerning character has been proffered.

The flowchart on the right (click on it for a full size PDF) illustrates the complexity of the issues, but omits much explanatory detail. It is here just for illustrative purposes.

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Character evidence falls into three broad categories:

  1. The rules treat a person's reputation for a character trait (e.g., "what is Mr. Smith's reputation for truthfulness?") and the opinion of the witness ("do you have an opinion regarding Mr. Smith's truthfulness?") as being the same thing. See Fed. R. Evid. 405(a).
  2. Character is also shown by introducing evidence of extrinsic evidence of conduct (e.g., bad acts).
  3. Finally, cross-examination about bad acts is permitted under certain circumstances.

Start by indicating whether the party wishes to show character with:

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Is the opinion or reputation character evidence offered to show the:

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1972 Advisory Committee note: "Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not."

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This is permitted under Rule 608(a): "A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked."

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The party seeking to admit the character evidence is:

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The defense has introduced evidence through this or a prior witness:

A "pertinent character trait" is a trait that relates or tends to negate an element of the charged offense. The most common examples are character for peacefulness where a violent crime is charged, or honesty in a theft or fraud case.

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This is permitted under Rule 404(a)(2)(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[.]"

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This is permitted under Rule 404(a)(2)(B): "[S]ubject 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[.]"

* Evidence Rule 412 limits evidence of the past sexual behavior of an alleged victim of sexual misconduct.

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This is permitted under Rule 404(a)(2)(C): "[I]n 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."

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The defense is seeking to offer opinion or reputation character evidence regarding:

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The proffered "instance" evidence is:

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This is permitted under Rule 405(b): "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."

It is, however, difficult (perhaps impossible) to find a modern example of a charge, claim, or defense that has character as an essential element.

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The evidence is being offered:

Examples of non-propensity purposes: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

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Choose whether you want to prove that the conduct resulted in a criminal conviction (typically, with the judgment order or an admission by the witness), or whether you want to prove the facts of the conduct, even though it may not have resulted in a qualifying conviction.

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Extrinsic evidence of specific instances of conduct is not admissible on the issue of a witness' truthfulness unless in the form of a criminal conviction. Fed. R. Evid. 608(b). The admissibility of a criminal conviction is determined under Rule 609.

The conviction is:

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Are all three of these things true?

  1. The person being impeached is not the accused in a criminal case
  2. The evidence is necessary to fairly determine guilt or innocence
  3. An adult's conviction for that offense would be admissible to attack the adult's credibility

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A juvenile conviction may be admitted under Rule 609(d) if:

(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.

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Federal Evidence Rule 609(a)(1) provides that such a conviction "(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant[.]"

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Federal Evidence Rule 609(a)(2) provides that such a conviction "must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement."

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Federal Evidence Rule 609(b)(1) provides that such a conviction is only admissible if "(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect[.]"

The party seeking to admit the conviction must give advance notice. Fed. R. Evid. 609(b)(2).

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This is barred by Rule 404(b)(1): "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."

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This may be permitted under Rule 404(b)(2): "[Evidence of a crime, wrong, or other act] .... may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."

It must also pass the relevance standard of Rule 401 and the Rule 403 balancing test.

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The question is about an incident reflecting on the:

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This is permitted under Rule 608(b)(1): "[T]he court may, on cross-examination, allow [specific instances of conduct] to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness[.]"

"Probative" means that a court can bar the inquiry where its probative value is outweighed by concerns of confusion and unfair prejudice. The question must be asked in good faith, and the questioner is generally stuck with the witness' answer.

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This may be permitted under Rule 608(b)(2): "[T]he court may, on cross-examination, allow [specific instances of conduct] to be inquired into if they are probative of the character for truthfulness or untruthfulness of: ... (2) another witness whose character the witness being cross-examined has testified about."

"Probative" means that a court can bar the inquiry where its probative value is outweighed by concerns of confusion and unfair prejudice. The question must be asked in good faith, and the questioner is generally stuck with the witness' answer.

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This is permitted under Rule 405(a): "On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct."

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The Federal Rules of Evidence do not permit this.

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