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FRE 404: Character Evidence ("Who You Are" vs. "What You Did")

Is it barred character evidence? Check in this order

  1. What is it offered to prove? If it's offered to show the person acted in line with their character this time, FRE 404(a)(1) and 404(b)(1) bar it unless an exception applies.
  2. Criminal case? Check who opened the door. The defendant may offer a pertinent trait of their own or (subject to Rule 412) of the victim, and the prosecution may then rebut (404(a)(2)). In a homicide case the prosecution may show the victim's peacefulness to rebut a first-aggressor claim.
  3. Other crimes, wrongs or acts? Name the non-propensity purpose (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; 404(b)(2)). The jury must be able to reasonably find that the act occurred and the defendant did it (Huddleston). It must survive FRE 403. In a criminal case the prosecutor must give reasonable notice, in writing before trial unless the court excuses pretrial notice for good cause (404(b)(3)).
  4. How is character proved? Reputation or opinion (405(a)). Specific instances only on cross (405(a)), or when character is an essential element of a charge, claim or defense (405(b)).
  5. Check the carve-outs: habit isn't character (FRE 406), sex-offense cases allow similar-act evidence (FRE 413–415), and Rule 412 limits evidence of a victim's other sexual behavior or sexual predisposition in cases involving alleged sexual misconduct.

Sources: FRE 403, 404, 405, 406, 412, 413, 414 and 415 (Cornell LII); Huddleston v. United States (CourtListener), checked 2026-10-24.

The rule (plain words)

Evidence of a person's character or trait isn't admissible to prove they acted in line with it on a particular occasion. Other crimes, wrongs, or acts can't be used to show propensity, but they may come in for another purpose. FRE 404 (verified 2026-10-24).

Elements / tests

  1. Purpose check. Is the evidence offered to show propensity? If so, it's barred unless an exception applies.
  2. Criminal-case exceptions (404(a)(2)):
    • The defendant may offer a pertinent trait of their own, and then the prosecution may rebut.
    • Subject to the limits in Rule 412 (cases involving alleged sexual misconduct), the defendant may offer a pertinent trait of the victim. The prosecution may rebut it and also offer the same trait of the defendant.
    • In a homicide case, the prosecution may offer the victim's peacefulness to rebut a claim that the victim was the first aggressor.
  3. Method (FRE 405, verified 2026-10-24): use reputation or opinion. Specific instances are allowed on cross, or when character is itself an element of the claim or defense.
  4. Other acts (404(b)(2)): they may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (the list is examples, not a closed set). FRE 403 balancing still applies. In a criminal case, the prosecutor must give reasonable notice in writing before trial, stating the permitted purpose and the reasoning behind it (during trial only if the court excuses pretrial notice for good cause).
  5. Sex-offense carve-outs: FRE 413 (verified 2026-10-24) and Rules 414–415 allow propensity evidence of similar acts.

Civil cases

The 404(a)(2) exceptions apply only "in a criminal case," so DOOR is a criminal-case tool. In a civil case, character evidence offered to prove conduct stays barred, whichever party offers it, except the sexual-assault/child-molestation civil carve-out (FRE 415). When character is itself an essential element of a claim or defense, it isn't a propensity use, and 405(b) allows specific instances. Other-act evidence offered for a real 404(b)(2) purpose isn't limited to criminal cases; the notice duty in 404(b)(3) binds only the prosecutor in a criminal case.

Witness character is a different rule

FRE 404(a)(3) says evidence of a witness's character may be admitted under Rules 607, 608 and 609. That's a credibility question, not a conduct question. Rule 404 asks whether a trait shows the person acted in line with it on a particular occasion. Rules 608 and 609 ask only whether this witness should be believed: 608 allows reputation or opinion about character for truthfulness, and 609 covers attacking credibility with a criminal conviction. Same person, different question, different rule.

Key cases

Case Year Holding (one line) Link
Michelson v. United States (U.S.) 1948 Once a defendant offers character witnesses, the prosecution may ask them whether they've heard of the defendant's prior arrests, subject to the court's control. CourtListener — verified 2026-10-24
Huddleston v. United States (U.S.) 1988 Other-act evidence comes in under 404(b) if a jury could reasonably find, by a preponderance, that the act happened. No preliminary judicial finding is required. CourtListener — verified 2026-10-24

Common exam traps

Mnemonic

DOOR, then PURPOSE is LearnFun original packaging of public doctrine.

"DOOR, then PURPOSE": Defendant Opens, Opponent Rebuts. For other acts, ask: is there a real, non-propensity PURPOSE?

Practice questions (original)

Made-up facts. Answer each before you read the key.

  1. In a robbery trial, before the defense offers any character evidence, the prosecutor calls a neighbor to say the defendant "has a reputation as a violent bully." Admissible?
    Show keyKey: No. The prosecution can't open the character door. FRE 404(a)(1) bars the trait to prove conduct, and the criminal-case exceptions start with the defendant (404(a)(2)(A)). Defendant Opens.
  2. In an assault trial, the defendant claims self-defense and calls a witness who says the alleged victim has a reputation for violence. What can the prosecutor do now?
    Show keyKey: Rebut it with evidence of the victim's peacefulness, and also offer evidence that the defendant has the same trait for violence (404(a)(2)(B)(i)–(ii)). Opponent Rebuts.
  3. A fraud defendant's character witness testifies to the defendant's reputation for honesty. On direct, defense counsel asks the witness to describe the day the defendant returned a lost wallet with $500 in it. Allowed?
    Show keyKey: No. On direct, character is proved by reputation or opinion (FRE 405(a)). The court may allow questions about specific instances on cross of the character witness, and they may also be proved when character is an essential element of a charge, claim, or defense (405(b)).
  4. A customer sues a bike mechanic, saying a brake cable he fixed one Tuesday snapped. Two coworkers testify. One calls him "the most careful mechanic in town." The other says that for six years she has watched him squeeze every brake lever three times and clip a green tag on the bike before it leaves his stand. Which testimony can show what he did that Tuesday?
    Show keyKey: Only the second. "Most careful mechanic" is a character trait offered to show he was careful that day, barred by 404(a)(1). Three squeezes and a green tag on every bike for six years is a habit, and FRE 406 lets a person's habit prove he acted in accordance with it on that occasion, whether or not it's corroborated or anyone saw the repair. (For an organization, 406 says "routine practice.") Careful is who he is; three squeezes is what he does.
  5. Trap: In a burglary trial, the prosecutor offers proof that the defendant did two earlier burglaries the same unusual way, through a skylight, leaving a playing card behind, and says it shows "he's a burglar." Does it come in on that theory?
    Show keyKey: Not on that theory. "He's a burglar" is propensity, barred by 404(b)(1). The same proof may be admissible to prove identity under 404(b)(2), if a jury could find the earlier acts happened (Huddleston), it survives FRE 403, and the prosecutor gives the notice 404(b)(3) requires. The stated PURPOSE decides it.

Next lessons

Hearsay exceptions mnemonic · Hearsay exclusions under 801(d) · Bar exam mnemonics under the clock

One-page cheat sheet

TOPIC: Character Evidence (FRE 404/405)
ASK:
  1. Offered to show propensity? -> barred, unless...
  2. Criminal D opened the door (own trait / victim trait)? Homicide first aggressor?
  3. Other act offered for a non-propensity purpose (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) + passes 403 + Huddleston standard?
RULE IN ONE LINE: Not "who you are," only "why/how you did it."
METHOD: reputation/opinion; specific acts on cross or when character is an element.
DO NOT CONFUSE WITH: habit (406); impeachment character (608/609); 413-415 sex cases.

MBE is a trademark of NCBE. Not affiliated with or endorsed by NCBE or any bar-review course. NCBE describes the Multistate Bar Examination on its site (NCBE — MBE — verified 2026-10-24).

Sources

Last checked: 2026-10-24