TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 404, N.D.R.Ev., Character Evidence Not Admissible to Prove Conduct, Exceptions: Other Crimes
In September, the Committee approved amendments to Rule 404 by a 10-7 vote. Because this was less than a two-thirds majority, the rule is being brought back for further discussion.
The proposed amendments to the rule are based on amendments to Fed.R.Ev. 404 that took effect Dec. 1, 2006. The intent of the federal amendments was to allow parties to rely on the rule's exceptions only in criminal cases. This wisdom of making such a change in North Dakota was the subject of much discussion by the Committee in September.
The version of the rule considered by the Committee in September contained updates not related to the federal amendments. Staff has prepared an alternative version of the rule that contains the updates but does not contain the language limiting use of the rule's exceptions to criminal cases.
Even if the federal amendments are incorporated, the rule will continue to allow the admission of "other wrongs" evidence and "character of the witness" evidence as allowed by N.D.R.Ev. 607, 608 and 609. At the September meeting, the Committee asked staff to research what types of character evidence is allowed under these rules.
Rules 607, 608 and 609 do not allow the admission of character evidence in general, but only of evidence relevant to the character for truthfulness of a witness.
Rule 607 allows any party to impeach a witness. A copy of Rule 607 is attached.
Rule 608 allows a party to attack or defend the credibility of a witness through the use of opinion and reputation evidence, or evidence of specific instances of conduct, that is relevant to a witness' character for truthfulness. A copy of Rule 608 is attached.
Rule 609 allows the use of evidence of conviction of a crime to attack the credibility of a witness. The Committee approved amendments to this rule in September and the approved amendments are attached for the Committee's reference.