RULE 404. CHARACTER EVIDENCE;
ADMISSIBLE TO PROVE CONDUCT,
EXCEPTIONS: OTHER CRIMES OR OTHER ACTS
(a) Character Evidence
Generally. Evidence of a person's character or a trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(1) Character of accused. Evidence of a pertinent trait of character offered by an
or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged
victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence
of the same trait of character of the accused offered by the prosecution;
(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;
(2) Character of victim. Subject to the limitations imposed by Rule 412, evidence
pertinent trait of character of the victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut evidence that the victim was the first
(B) subject 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; and
(C) in 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.
(3) Character of witness. Evidence of the character of a witness, as provided in
608, and 609.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
Other Crimes, Wrongs, or Other Acts. Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. However, it may be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that the prosecution in a criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
(1) 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.
(2) Permitted Uses; Notice in a Criminal Case. 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. The prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial or during trial if the court, for good cause, excuses lack of pretrial notice.
Rule 404 was amended, effective March 1, 1990, March 1, 1994, March 1, 2008;______________.
The general rule that character evidence may not be introduced to show that a
in conformity to character is compatible with present North Dakota case law. Character
evidence is not admissible when its purpose would be to prove circumstantially how a person
acted on a particular occasion. Whenever the character of a person is in issue, as in a
defamation case, this exclusion does not apply.
Subdivision (a)(1) Paragraph (a)(2) allows the accused to offer
circumstantial evidence of
character. Traditionally, this has been allowed, for the objection to character evidence in
general is not that it has no relevancy but that its probative value, when weighed against
possible prejudice, does not warrant admission. If the accused offers such evidence, the issue
of prejudice is no longer a factor.
Subdivision Paragraph (a) (1)(2)(B)
was amended, effective March 1, 2008, to add
clarifying language on victim character evidence.
Except when Rule 412 applies, subdivision (a)(2) allows character evidence of the
of a crime to be introduced by an accused and evidence of peacefulness of a homicide victim
by the prosecution to rebut evidence that the victim was the aggressor.
Subdivision Paragraph (a)(3) provides that, in dealing with
impeachment of a witness,
Rules 607, 608, and 609 state the applicable rules. The present rule retains its force, and
should be consulted whenever the witness is also a party whose actions are sought to be
Subdivision (b) restates the general rule, but continues to provide that character evidence offered for other purposes, e.g., motive, intent, or identity, is admissible. But the mere labeling of such evidence does not automatically bring admission.
Rule 404 was amended, effective March 1, 1990. The amendments are technical in
and no substantive change is intended.
Subdivision (b) was amended, effective March 1, 1994, to follow the 1991 federal amendment, by adding a pretrial notice requirement in criminal cases. However, unlike the federal rule, North Dakota's amended rule does not place the burden of requesting notice upon the accused. Because the notice requirement serves as a condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met. The amendment is not intended to redefine what evidence would otherwise be admissible under Rule 404(b).
Rule 404 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
page 14; January 25,
2007, pages 10-11; September 28-29, 2006, pages 13-14; April 29-30, 1993, page 10;
January 28-29, 1993, pages 11-12; March 24-25, 1988, page 12; December 3, 1987, page
15; April 8, 1976, pages 20, 21. Fed.R.Ev. 404; Rule 404, SBAND proposal.
Considered: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 27-20-33, 27-20-52, 42-02-07.
Cross Reference: N.D.R.Ev. 412 (Admissibility of Alleged Victim's Sexual Behavior or Alleged Sexual Predisposition in Criminal Proceeding), 607 (Who May Impeach), 608 (Evidence of Character and Conduct of Witness), and 609 (Impeachment by Evidence of Conviction of Crime).