Character Evidence
The rule is simple—no propensity. The points live in the doors around the ban: MIMIC, the mercy rule, victim character, habit, and the sexual-assault carve-out.
The propensity gate
Someone offers “what kind of person” evidence
Ask what it's really being used for.
Is it offered to show they acted in character this time?
Not propensity. MIMIC purposes, impeachment, or character-as-element—analyzed on their own terms.
Civil case?
Barred. No mercy rule in civil cases—unless character IS an essential element (defamation, negligent hiring, child custody).
Sexual-assault or child-molestation case?
413–415: the defendant's prior sexual assaults come in—propensity allowed.
Did the defendant open the door?
Mercy rule: D offered good character first—now the prosecution may rebut.
Propensity stays out
The prosecution can never open the character door first.
The ban—and its purposes workaround
Evidence of a person's character or prior acts is inadmissible to prove they acted in conformity with it on this occasion. But prior acts ARE admissible for any non-propensity purpose—with reasonable notice in criminal cases, and always subject to Rule 403 balancing.
| MIMIC purpose | What it proves | 🐚 Example |
|---|---|---|
| Motive | A reason to commit this crime | Liv's embezzlement shows why she torched the audit records |
| Intent | State of mind, absence of accident | Rosa “mislabeled” decaf twice before—this one wasn't a mistake |
| Mistake (absence of) | They knew exactly what they were doing | Noodle's three prior “accidental” insurance fires |
| Identity | Signature m.o.—so distinctive it's a fingerprint | The burglar who always leaves a shell on the pillow, like Liv's two priors |
| Common plan/scheme | Steps of one larger plan | Lana's forged permit was step one of the land-flip scheme |
Criminal vs. civil at a glance
- Mercy rule: the defendant may open with pertinent good character—reputation or opinion only (FRE 405(a))
- Prosecution rebuts with its own witnesses—and may cross D's witness with “have you heard” specific acts (no extrinsic proof)
- Victim's character: D may offer the victim's violent character in self-defense cases; prosecution rebuts—and in homicide, may respond to any evidence the victim struck first
- No mercy rule—propensity character is out, period
- Exception: character as an essential element—defamation (was the statement true?), negligent hiring/entrustment, child custody
- When character IS in issue, all three methods open up: reputation, opinion, and specific acts (FRE 405(b))
Liv, on trial for assault, calls Lana to testify Liv is peaceful—allowed, mercy rule, reputation or opinion form. The prosecutor may ask Lana, “have you heard about Liv's bar fight?”—but can't call witnesses to prove the fight happened. In Rosa's civil suit against Liv over the same brawl, none of this character evidence comes in at all.
Habit is not character
Habit—a regular, specific, semi-automatic response to a particular situation—IS admissible to prove conduct in conformity. The line: character is “Liv is careful”; habit is “Liv always latches the gate with both bolts, every time.”
“Noodle buckles his seatbelt before starting the car, every single time” = habit, admissible to show he was buckled that night. “Noodle is a cautious guy” = character, barred.
The carve-outs
FRE 413–415: in sexual-assault and child-molestation cases (criminal or civil), the defendant's prior sexual assaults are admissible—including as propensity.
Rape shield (FRE 412): the victim's sexual behavior or predisposition is generally out. Criminal exceptions: specific acts to show another source of physical evidence, prior acts with the defendant on consent, and where exclusion would violate due process.
Where the points are
The traps examiners actually set.
- Most tested
- MIMIC purposes dressed up as propensity (and vice versa); the mercy rule's reputation/opinion-only limit; “have you heard” cross vs. extrinsic proof; habit vs. character.
- Classic traps
- The prosecution opening the character door first (never); specific acts on direct under the mercy rule (405(a) allows reputation/opinion only); civil propensity character (out, absent character-in-issue); forgetting 403 still applies to MIMIC evidence; identity m.o. that isn't actually distinctive.
Keep going: Character Evidence flowchart Evidence Attack Sequences Impeachment deep dive