⚡ 10-Second Rule
You can't prove someone did it this time by showing they're the type who would.
🧒 ELI-10 Scene
The cookie jar is empty. Ben points at his sister: "Lily took them — she's always the greedy one!" Mom refuses to blame Lily for being "the greedy type." She wants facts about today: crumbs, timing, who was in the kitchen. But the door swings if Lily starts it. If Lily announces "I'm the honest kid in this family," Mom may now hear about every fib. And if Ben once watched Lily hide this exact jar behind the cereal, that story helps differently. It shows Lily knew where the jar was — not that she's greedy.
⚖️ Actual Rule
Federal Rule of Evidence 404(a)(1) states: "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." FRE 404(a)(2) opens narrow doors in criminal cases only: the defendant may offer evidence of the defendant's own pertinent trait, or of the alleged victim's pertinent trait, and once the defendant does, the prosecutor may rebut — including, when the defendant attacks the victim's trait, by offering evidence of the defendant's same trait. In a homicide case, the prosecutor may offer evidence of the victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
FRE 404(b)(1) adds: "Evidence of any other crime, wrong, or 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." But under FRE 404(b)(2), "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." On method of proof, FRE 405(a) allows "testimony about the person's reputation or ... testimony in the form of an opinion" whenever character evidence is admissible, with inquiry into specific instances allowed only on cross-examination of the character witness; FRE 405(b) permits proof by specific instances "[w]hen a person's character or character trait is an essential element of a charge, claim, or defense."
[NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: "he's the type" is banned, but past acts can prove other things, like knowledge or identity.
🔍 Ask These Questions
- Is the evidence offered to show the person acted in accordance with a character trait? (Is the point "he's the type, so he did it again"?)
- If it's pure propensity in a civil case, it's out — unless character itself is an essential element of the claim. (Cases like defamation or negligent hiring actually argue about what kind of person someone is.)
- In a criminal case, has the defendant opened the door with a pertinent trait of himself or the victim? (Only the accused gets to open this door first.)
- If the door is open, the prosecutor may rebut — and in homicide, may prove the victim's peacefulness against a first-aggressor claim. (Once the accused starts the character fight, the other side can swing back.)
- Is the other act offered for a non-propensity purpose under 404(b)(2) — motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident? (Does the old act prove something besides "he's the type"?)
- Is the method of proof correct — reputation or opinion on direct, specific acts only on cross of a character witness or when character is an essential element? (Witnesses describe the person's reputation; they don't list old stories on direct.)
- Even a proper 404(b) purpose must survive FRE 403 balancing. (A good reason to admit can still lose to a huge unfairness.)
⚠️ Bar Trap
Exam language: Examiners disguise 404(b) evidence as forbidden propensity — and vice versa. A prior act offered to prove knowledge, identity by distinctive method, or absence of mistake is admissible despite screaming "character"; meanwhile, a prior act whose only logical link is "he did it before, so he did it again" is inadmissible no matter what non-propensity label the proponent recites. A second favorite: a character witness testifying to specific good deeds on direct examination, which FRE 405(a) forbids.
ELI-10: Ask what job the old act is doing. If the chain of logic runs through "he's that kind of person," it's banned. If it proves knowledge, a signature method, or a motive, it's allowed. And on direct, character witnesses give the headline, not the stories.
🧪 Question
A defendant is on trial for knowingly passing a counterfeit $100 bill at a hardware store. His sole defense is that he had no idea the bill was fake. The prosecution offers testimony from a bakery cashier that, eight days before the hardware store incident, the defendant handed her a counterfeit $100 bill from the same print run, and that she returned it to him, telling him it was fake. The defendant objects that the testimony is inadmissible character evidence.
Should the court admit the cashier's testimony?
(A) No, because evidence of other bad acts is inadmissible to show the defendant acted in conformity with his character. (B) No, because the defendant was never charged with or convicted of any offense arising from the bakery incident. (C) Yes, because the earlier incident shows the defendant is the kind of person who passes counterfeit bills. (D) Yes, because the earlier incident tends to show the defendant knew the bill was counterfeit.
Answer: (D). The bakery incident is offered for a non-propensity purpose under FRE 404(b)(2): a cashier told the defendant this bill was fake, which makes his claimed ignorance eight days later far less plausible. The logical chain runs through knowledge and absence of mistake, not through "he's the type."
💡 Why the Wrong Answers Are Wrong
- (A) states the 404(b)(1) ban but ignores 404(b)(2); the evidence is not offered to show conformity with character at all.
- (B) invents a charge-or-conviction requirement; 404(b) covers any "crime, wrong, or act," charged or not.
- (C) reaches the right result through the forbidden propensity chain — an answer choice's reasoning must be valid, and this one restates exactly what 404(b)(1) bans.
- ELI-10: The misconception is treating every past bad act as automatically banned, or automatically allowed. The ban only covers one job: proving "he's the type." Any other honest job keeps the evidence in.
