TITLE FOUR — RELEVANCY AND ITS LIMITS
Rule 404. Character Evidence; Crimes or Other Acts
Character Evidence.
Prohibited Uses. Evidence of a person’s character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
a defendant may offer evidence, in reputation form only, of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
where the identity of the first aggressor or the first to use deadly force is in dispute, a defendant may offer evidence of specific incidents of violence allegedly initiated by the victim, or by a third party acting in concert with or to assist the victim, whether known or unknown to the defendant, and the prosecution may rebut the same with specific incidents of violence by the defendant; and
a defendant may offer evidence known to the defendant prior to the incident in question of the victim’s reputation for violence, of specific instances of the victim’s violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the defendant.
Exceptions for a Witness. Evidence of a witness’s character for truthfulness or untruthfulness may be admitted.
Pertinence. A trait is pertinent within the meaning of Rule 404(1)(b)(i) only where the trait is inconsistent with the commission of the offense charged. A general trait of good character, or a trait bearing no relation to the offense charged, is not pertinent. The court shall require the defendant to identify the trait and the element or issue to which it is directed before the evidence is received.
Methods of Proving Character. Except where these Rules expressly provide otherwise, character shall be proved by testimony as to reputation and by no other means.
Evidence of specific instances of conduct to prove character is admissible only under Rule 404(1)(b)(ii), Rule 404(1)(b)(iii), and Rule 404(1)(f).
Opinion testimony as to a person’s character is not admissible, whether offered by a lay witness or an expert, consistently with Rule 610.
Rule 404(1)(e) does not limit the impeachment of a witness by evidence of a conviction under Rule 609, nor the use of specific conduct on cross-examination as Rule 404(1)(g) permits, nor the admission of a crime, wrong, or other act for a purpose permitted by Rule 404(2)(b).
Character as an Essential Element. Where a person’s character or a character trait is itself an element of a charge, a claim, or a defense, and not a step in an inference as to conduct on a particular occasion, that character or trait may be proved by testimony as to reputation and by evidence of specific instances of conduct. This subdivision applies, among other cases, to a claim of defamation in which the plaintiff’s character is in issue, to a claim of negligent entrustment, hiring, or retention, and to a defense of entrapment.
Foundation for Reputation Testimony; Cross-Examination.
A witness offering reputation testimony must first be shown to be sufficiently acquainted with the person and with the community in which the person is known to have learned the person’s reputation there. A community for this purpose includes a residential or occupational community of this State, a Discord server or channel in which the person participates under a known username, an organization or department in which the person serves, and any other group of persons among whom the person is known and discussed.
Reputation acquired only after the events in issue, or acquired only in the course of preparing for the litigation, is not a proper subject of testimony under this subdivision.
On cross-examination of a witness who has given reputation testimony, the examiner may inquire whether the witness has heard reports of specific conduct of the person bearing upon the trait testified to, for the sole purpose of testing the witness’s knowledge of the reputation and the standard by which the witness measures it. The examiner shall not assert the truth of the conduct inquired about, and shall not offer extrinsic evidence of it.
Before an inquiry under Rule 404(1)(g)(iii) is made, the examiner shall, out of the hearing of a jury where a jury sits, disclose to the court the conduct to be inquired about and the good-faith basis for believing that reports of it circulated in the relevant community. The court shall rule upon the inquiry in advance, applying Rule 403, and shall on request instruct the fact finder as to the limited purpose of the inquiry.
Rebuttal. Where a defendant offers evidence under Rule 404(1)(b), the prosecutor may offer evidence to rebut it, in the same form and subject to the same limitations as the evidence rebutted, and no further. Evidence offered in rebuttal under Rule 404(1)(b)(ii) is confined to specific incidents of violence by the defendant, and evidence offered in rebuttal under Rule 404(1)(b)(i) is confined to reputation.
Notice of Evidence Offered Under Rule 404(1)(b)(ii) or (iii). A defendant intending to offer evidence of specific incidents of violence under Rule 404(1)(b)(ii), or evidence of specific instances of the victim’s violent conduct or of the victim’s statements under Rule 404(1)(b)(iii), shall give notice in the manner prescribed by Rule 404(2)(d). The notice shall state the incident or statement relied upon, the date and place of it, the usernames of the witnesses through whom it is to be proved, and, as to evidence offered under Rule 404(1)(b)(iii), the manner in which the defendant came to know of it before the incident charged. Within twenty-four (24) hours after service of the notice the prosecution shall give reciprocal notice of the specific incidents of violence by the defendant it intends to offer in rebuttal. The court may relieve a party of the requirements of this subdivision for cause shown, and shall relieve a defendant of them where the evidence became known to the defendant after the time for notice had passed. Nothing in this subdivision limits the right of a defendant to testify.
Crimes, Wrongs, or Other Acts.
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.
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. However, evidence of other bad acts is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk. Evidence of such an act is not admissible in a criminal case against a defendant who was prosecuted for that act and acquitted.
Preliminary Determination. Before receiving evidence under Rule 404(2)(b) the court shall determine, as a preliminary question under Rule 104(1):
that the proponent has identified a purpose other than propensity, stated with precision, and that the evidence is offered for that purpose in fact and not as a pretext for propensity;
that the issue to which the evidence is directed is genuinely contested in the case, or is one the proponent must prove notwithstanding the absence of contest;
that there is evidence sufficient to support a finding that the act occurred and that the person against whom it is offered committed it, the court not being required to find the act proved beyond a reasonable doubt;
that the act is sufficiently connected in nature, time, and circumstance to the matter in issue to support the inference for which it is offered, a proffered plan or modus operandi requiring a degree of similarity distinctive enough to signify the hand of the same person; and
that the balance required by Rule 404(2)(b) favors admission, the court weighing the need for the evidence, the strength of the proof that the act occurred, the availability of less prejudicial proof, the inflammatory character of the act, and the risk that the fact finder will use the act to punish rather than to prove.
Notice.
Content. A party intending to offer evidence under Rule 404(2)(b) shall give written notice stating: the act relied upon; the date, time, and place of the act, and where the act occurred in game, the incident, arrest, or citation with which it is associated; the case number of any proceeding in which the act was charged and the disposition of that proceeding; the usernames of the witnesses through whom the act is to be proved and the identification of every document, recording, or record relied upon; the precise purpose for which the evidence is offered; and the issue in the case to which that purpose is directed. A notice which states only that evidence may be offered “for a permitted purpose under Rule 404(2)(b)” is insufficient.
Time in a Criminal Case. The prosecution shall file the notice at or before the pretrial conference held under Rid. R. Crim. P. 11(a), and in no event later than twenty-four (24) hours before the commencement of trial. A defendant intending to offer evidence under Rule 404(2)(b) against any person shall file the notice within the same period.
Time in a Civil Action. A party shall file the notice at or before a conference held under Rid. R. Civ. P. 13, and in no event later than forty-eight (48) hours before the commencement of trial.
Manner. The notice shall be filed through the electronic filing system, and the filing is complete when the system records every document comprising it as received. The system effects service upon the other participants when the clerk accepts the filing; because acceptance is not within the filer’s control, the party giving notice shall in addition transmit the notice through the proceeding communications at the time of filing, and the period prescribed by this subdivision is satisfied by that transmission together with the filing.
Continuing Duty. A party who learns of an act or of a witness after giving notice, which would have been required to be stated in the notice, shall promptly supplement the notice in the same manner.
Good Cause. The court may excuse the absence of notice, or shorten the period, for good cause, which includes the proponent’s want of knowledge of the act despite reasonable inquiry and the emergence of the issue during trial. Where notice is excused, the court shall afford the opposing party a reasonable opportunity to meet the evidence, which may include a recess, a continuance under Rid. R. Crim. P. 10, or leave to recall a witness.
Failure to Give Notice. Upon a failure to comply with this subdivision the court may exclude the evidence, grant a continuance, permit further discovery, or enter such other order as is just, proceeding as Rid. R. Crim. P. 14(c) or Rid. R. Civ. P. 26.3 provides. Exclusion shall not be ordered against a criminal defendant where a lesser sanction will cure the prejudice, and this subdivision shall not limit the right of a defendant to testify.
Objection. A party objecting to evidence described in a notice shall proceed by motion in limine under Rule 103(6), filed promptly after service of the notice and in any event before the evidence is offered. The failure to move in limine does not waive an objection made when the evidence is offered, subject to Rule 103(2).
Limiting Instruction. Where evidence is admitted under Rule 404(2)(b):
In a trial before a jury, the court shall, on timely request, instruct the jury at the time the evidence is received and again in its final charge that the evidence is received solely for the identified purpose; that the jury may not consider it as evidence of the person’s character or as showing a propensity to commit the act charged; that the jury may not convict or find liability on account of the other act; and that the jury may not punish the person for the other act. The court may give the instruction on its own initiative.
In a trial without a jury, the court shall state on the record, at the time the evidence is received, the purpose for which it is received and that the court will not consider it for any other purpose. The statement discharges the obligation imposed by Rule 105 in such a trial.
A request for an instruction under this subdivision is not a waiver of the objection to the evidence.
Acquittal; Other Dispositions; Sealed and Expunged Records.
Evidence of an act is not admissible in a criminal case against a defendant who was prosecuted for that act and acquitted. An acquittal for this purpose includes a verdict or finding of not guilty and a required finding of not guilty entered under Rid. R. Crim. P. 25.
A dismissal, a nolle prosequi, a decision not to charge, and a vacatur of arrest under 6 R. Stat. § 131.608 are not acquittals within Rule 404(2)(f)(i), but the disposition and the reason for it are proper matters for the court’s determination under Rule 404(2)(c)(iii) and (v), and the opposing party may prove the disposition.
Where the record of an act has been expunged under 6 R. Stat. §§ 131.601 through 131.607, or the arrest vacated and the record expunged under 6 R. Stat. § 131.608, the expunged record is not admissible to prove the act, and no party shall subpoena or offer it. The act may be proved by evidence independent of the expunged record, subject to this Rule.
Application in Civil Actions. Rule 404(2)(a) and Rule 404(2)(b) apply in a civil action. The balance stated in the second sentence of Rule 404(2)(b) governs evidence offered against a defendant in a civil action; evidence of a crime, wrong, or other act offered against a plaintiff, a petitioner, or a person who is not a party is governed by Rule 403. The bar stated in the third sentence of Rule 404(2)(b) applies only in a criminal case.
Character in Civil Actions. Evidence of a person’s character or a character trait is not admissible in a civil action to prove that on a particular occasion the person acted in accordance with the character or trait. The exceptions stated in Rule 404(1)(b) are confined to criminal cases. Rule 404(1)(c) and Rule 404(1)(f) apply in a civil action.
Record of the Ruling. A ruling under this Rule, and the findings required by Rule 404(2)(c), shall be made on the record in the proceeding communications. The court shall state the purpose for which evidence is admitted and the scope of any restriction imposed. A ruling under this Rule is subject to reconsideration as the evidence develops, and the court may strike evidence received conditionally where the condition fails.
Relation to Other Rules. This Rule does not limit:
the admission of a judgment of a previous conviction under Rule 803(5);