TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 404, N.D.R.Ev., Character Evidence Not Admissible to Prove Conduct, Exceptions: Other Crimes
The U.S. Supreme Court has approved amendments to Fed.R.Ev. 404 and they will take effect December 1 unless Congress intervenes. Proposed amendments to Rule 404 have therefore been prepared for consideration by the Committee.
The intent of the proposed changes is allow parties to rely on Rule 404's exceptions only in criminal cases. The federal advisory committee decided that, in civil cases, evidence of a person's character should never be admissible to prove that the person acted in conformity with the character trait.
The great majority of North Dakota Supreme Court decisions involving Rule 404 have been issued in criminal cases. Rule 404, however, has been implicated in three civil cases:
--In Lange v. Cusey, 379 N.W.2d 775 (N.D. 1985), the defendant's attorney made comments suggesting that there was evidence the defendant was a good driver and the plaintiff was a bad driver. The trial judge sustained objections to these comments and later granted plaintiffs a new trial because the jury had been exposed to the comments. The Supreme Court affirmed.
--In Patterson v. Hutchens, 529 N.W.2d 561 (N.D. 1995), the plaintiff sought to introduce evidence that the defendant doctor "excessively utilized surgery for economic gain." The trial court excluded the evidence and the Supreme Court affirmed.
--In Harfield v. Tate, 2004 ND 45, 675 N.W.2d 155, the defendant was allowed to introduce evidence suggesting that the plaintiff was a malingerer. The Supreme Court reversed, holding the evidence was inadmissible. The Court, however, suggested that the evidence could have been admitted had it qualified under the Rule 404 exceptions.
The results in these cases indicate that the Supreme Court, while not necessarily sympathetic to the admission of character evidence in civil cases, recognizes that such evidence could be admitted in a civil case under Rule 404. This might no longer be the case if the proposed rule change is implemented.
Amendments are also proposed for the explanatory note. The proposed amendments explain the changes to the rule and also update the content of the explanatory note.
References to N.D.C.C. §§ 12.1-20-14 and 12.1-20-15 were removed from the text of the rule and the explanatory note because these statutes were superseded by Rule 412 in 1998.
A rule draft containing the proposed amendments is attached.