Article IV. Relevance

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Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.

(a) Character Evidence Generally.  Evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused.  In a criminal case, 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 the 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 Alleged Victim.  In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(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 with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

[As amended by order filed January 31, 2003, effective July 1, 2003; and by order filed January 8, 2009, effective July 1, 2009.]

Advisory Commission Comments.

Part (a) has always been the law in Tennessee for criminal prosecutions.

T.C.A. § 40-17-119 [repealed; see 1991 comments] regulates character evidence offered to prove a rape victim's alleged consent.

In civil actions, Tennessee is one of a minority of jurisdictions admitting character evidence in some situations to prove circumstantially conduct involving "moral turpitude." Spears & Solomon v. International Insurance Co., 60 Tenn. 370 (1872). The proposed rule would change that minority position; character would be inadmissible circumstantially in all civil cases. Of course, if character is directly at issue in a civil action, such as in a defamation action, character evidence necessarily is relevant and admissible under Rule 405(b).

The Commission drafted Part (b) in accord with the Supreme Court's pronouncements in State v. Parton, 694 S.W.2d 299 (Tenn. 1985). There the Court established precise procedures to emphasize that evidence of other crimes should usually be excluded. In the exceptional case where another crime is arguably relevant to an issue other than the accused's character —issues such as identity (including motive and common scheme or plan), intent, or rebuttal of accident or mistake —the trial judge must first excuse the jury. Then the judge must decide what material issue other than character forms a proper basis for relevancy. If the objecting party requests, the trial judge must state on the record the issue, the ruling, and the reason for ruling the evidence admissible. Finally, the judge must always weigh in the balance probative value and unfair prejudice. If the danger of unfair prejudice outweighs the probative value, the court should exclude the evidence even though it bears on a material issue aside from character. Finally, according to Parton, the trial judge must find that the evidence is "clear and convincing" that the defendant committed another crime.

Advisory Commission Comments [1991].

[In place of the second paragraph of earlier language, which is rescinded, insert the following language as the new second paragraph:]

The character of the victim of a sex crime is not governed by Rule 404(a)(2), but rather by T.R.Evid. 412.

Advisory Commission Comment [2003].

The third condition for admitting other crimes, clear and convincing proof, has been required by case law before and after adoption of the Rules of Evidence. This principle was first enunciated in Wrather v. State, 179 Tenn. 666 (1943), reversing a mother’s conviction for murdering her adult son by arsenic poisoning. Evidence that she killed her father-in-law and brother-in-law with arsenic was not clear and convincing. The Supreme Court again approved this standard in State v. Parton, 694 S.W.2d 299 (1985).

Advisory Commission Comment [2005].

The word “person” in Rule 404(b) has been construed to refer solely to the defendant in a criminal prosecution. State v. Stevens, 78 S.W.3d 817 (Tenn. 2002).

Advisory Commission Comment [2009].

If the accused attacks the character of the alleged victim, amended Rule 404(a)(1) allows the prosecution to prove the accused's character for the same trait. This is an additional way the accused "opens the door" to character evidence.

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