FRE 404(a)(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.

The description above is called propensity evidence. This is where a person most of the time alines with the character trait described (e.g., a violent person is more likely to cause a fight).

Character is defined as a general response to one’s disposition towards certain traits such as honesty or integrity.

This kind of evidence is typically offered when there is lack of direct evidence (evidence based on senses). However, this is often prejudicial since character can change. The only way this evidence may be admitted is through FRE 405.

People v. Zackowitz

254 N.Y. 192 (1930).

Zackowitz was charged with murder. The prosecution sought to admit into evidence the fact that Zackowitz owned a lot of weapons. Clearly, the purpose was to show that his gun ownership meant that he was likely to use a weapon to be a bad guy. This inference then leads to an inference that he acted and did so with premeditation.

The majority does not like this reasoning and says that the evidence is not admissible. However, the dissent argues that admission was part of the case development.

The rational for exclusion is that unfair prejudice comes in three ways:

  1. A jury may give excessive weight to the crime.
  2. The jury will use the character as a justification to punish the defendant.
  3. The evidence may be used to confuse the jury in a mini-trial.

The Propensity Box

Consider Zackowitz, the evidence of showing his ownership of weapons was to prove his vicious and dangerous character. In turn, this is used to prove he acted in accordance with that character. Again, to show that the premeditated murder occurred.

There are ways around the propensity box. The evidence may still be used, not to show character, but a permissible authorization (such as identify or being at the crime scene). Here, the jury may still make the inference that gun ownership was an example of character, but at least the prosecution didn’t present it (hence 105 limiting may be needed).

Other Crimes, Wrongs, or Acts: 404(b)


Evidence of another crime, wrong, or act (as long as it is not a part of this act) is not allowed to prove a person’s character to show that the person acted in accordance with the character on a particular occasion.


However, the evidence may be permitted such as a showing “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” This is an illustrative list, not exhaustive. It is also important to note that this list is not a list of exceptions. Improper use of this list may still take the evidence through the propensity box in violation of 404(a).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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