404(a)(2)(A) and (B); 405(a)

Michelson v. United States

335 U.S. 469 (1948).

Michelson was charged of bribing a federal agent for a policy he found favorable. This is a crime that goes to the defendant’s character of honesty. During trial, Michelson sought to bring character witnesses, to testify to his honesty (has to be honesty, because the crime he was charged with goes to his honesty). Under rule 404(a)(2)(A), a criminal defendant can call character witnesses, bringing in propensity evidence.

The character witnesses Michelson called had known him for between 15–30 years and claimed his reputation was outstanding. On cross examination, the state asked if the witnesses were aware that Michelson had been arrested (but not charged or convicted) of receiving stolen goods (again a crime that goes to his honesty) that occurred 27 years previously. This line of questioning is permitted under rule 405(a) because the defendant opened the door. Because the witnesses had known him for about 30 years, this line of questioning was fine (although controversial).

Essentially, a criminal defendant can introduce character evidence that goes straight through the propensity box. If the defendant does this, however, the defendant must be prepared for the state introduce evidence to test the knowledge and impeach the witness under rule 405(a) and 608.

On a slightly separate but related note: criminal defendants can present testimony of the character of a victim (usually in self defense cases. 404(a)(2)(B). The only time the state can bring propensity evidence is to show a victim was peaceful, but only after the defendant has claimed self-defense. 404(a)(2)(C).


“When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.”

This rule simply means that if the character is a critical element of the crime, then evidence may be permitted to prove that element.

An example of when this rule is not in play is self-defense. This is because testing the violent nature of the victim is not essential to  whether the defendant reasonably feared for their life.

However, examples of when 405(b) typically comes into evidence are:

  • Rebutting entrapment defenses (“They made me do something I wouldn’t have otherwise done.” “Well, you’ve done it before.”)
  • Proving or rebutting a defense of truth in libel or slander (“This person constantly lies”)
  • Proving negligent entrustment (“The person the defendant entrusted was not competent”)
  • Parent custody disputes (who is the better parent?)
  • Whether a person is sexually violent

In this situation, this proof does not go through the propensity box and therefore is not a violation of rule 404(a).


People v. Martinez, 51 Cal. App. 4th 537 (1996). After being charged with killing an individual in a drive by shooting, Martinez testified that she only did so because she was scared of the person in the car with her. During cross-examination, the state asked whether Martinez had shot at people before, which she admitted. Is this permissible under 405(b)?

United States v. Keiser, 57 F.3d 847 (9th Cir. 1995). Keiser shot and injured Romero, claiming self defense. During the trial, Romero saw Keiser’s brother and shouted threats. Can the defense admit the incident into evidence to show Romero was violent in nature? Yes, Keiser is a criminal defendant and can bring evidence regarding the victim’s disposition under Rule 405(a)(2)(B).

State v. Shabazz, 246 Conn. 746 (1998). Charged with murder and claiming self-defense, Shabazz sought to introduce into evidence the testimony of an expert witness. The testimony said the victim had several substances within his system that increased the liklihood the victim of violence from the victim (because these substances increase violence generally). However, this evidence should be admitted because this goes to the whether the defendant had drugs, not the character.


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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