RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS: OTHER CRIMES
(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 occasion, except:
(1) Character of accused.
Except as otherwise provided by statute
evidence Evidence of a
pertinent trait of character offered by an accused, 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;
(2) Character of victim.
Evidence Subject to the limitations imposed
by Rule 412, evidence
of a 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
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other crimes, wrongs, or 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.
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.
v. Perleberg, 158 N.W.2d 188 (N.D. 1968). Character evidence is not admissible when
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. McCormick on Evidence, §§ 186, 187.
Subdivision (a)(1) 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 (a)(1) was amended, effective March 1, 2008, to add clarifying language on victim character evidence.
Except when Rule 412 applies,
(a)(2) allows character evidence
of the victim 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.
significant exception has been enacted to this general rule by the North Dakota Legislature
with its adoption of N.D.C.C. § 12.1-20-14, and N.D.C.C. § 12.1-20-15, relating
to cases involving gross sexual imposition.
Subdivision (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 proved.
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.
The North Dakota
Supreme Court stated that "the mere invocation of an exception to the (character evidence)
rule does not end inquiry, however. It only begins it." State v. Stevens, 238 N.W.2d 251,
257 (N.D. 1975).
In Stevens, the Supreme Court set forth criteria that should be considered whenever
(b) of this rule is invoked:
First, not all the purposes listed are of equal "weight." Citing McCormick on
§ 190, p. 452, the court stated that "a much stricter showing of relevancy is required to
prove identity or the doing of the criminal act by the accused, than when it is offered to
prove knowledge, intent, or state of mind." Stevens, supra, at 257.
Second, the court required that such evidence be "clear and convincing."
Third, the court stated that "before such evidence may be considered at all, there
proof of commission of the crime charged." Although there is some language in the opinion
which would suggest otherwise, this requirement means that, before the character evidence
may be used for any purpose, independent evidence that the charged crime was committed
must be present.
Finally, as a general proposition, the court stated that the question is "one of
aims of full disclosure and fairness to the defendant where they are in conflict * * * . The
problem is not one of pigeonholing, but of balancing, of discretion rather than following a
rule." Stevens, supra, at 257, 258.
Rule 404 was amended, effective March 1, 1990. The amendments are technical in nature 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).
Sources: Joint Procedure Committee Minutes
: of 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 , Federal Rules of Evidence; Rule 404, SBAND
Considered: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 27-20-33, 27-20-52, 42-02-07.
Rules N.D.R.Ev. 412 (Admissibility of Alleged
Behavior or Alleged Sexual Predisposition in Criminal Proceeding), 607 (Who May
Impeach), 608 (Evidence of Character and Conduct of Witness), and 609
Evidence of Conviction of Crime) , N.D.R.Ev.,.