THE COURTS
Title 225--RULES
OF EVIDENCE
[225 PA. CODE ART. IV]
Order Amending Rule 404 and Revision of Comment; No. 387 Supreme Court Rules; Doc. No. 1
[36 Pa.B. 1213]
Order Per Curiam:
Now, this 28th day of February 2006, upon the recommendation of the Committee on Rules of Evidence, and having been published for comment in Pennsylvania Bulletin, Vol. 35, No. 24, page 3287, and with a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pa.R.E. 404 and the comment thereto are hereby revised in the following form.
This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective March 31, 2006.
Madame Justice Baldwin did not participate in the consideration or decision of this matter.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes.
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except [as follows]:
(1) Character of Accused. In a criminal case, evidence of a pertinent trait of character of the accused is admissible when offered by the accused, or by the prosecution to rebut the same. If evidence of a trait of character of the alleged victim of the crime is offered by an accused and is admitted under subsection (2), evidence of the same trait of character of the accused is admissible if offered by the prosecution.
(2) Character of [Complainant] Alleged Victim.
(i) In a criminal case, subject to limitations imposed by statute, evidence of a pertinent trait of character of the [complainant] alleged victim is admissible when offered by the accused, or by the prosecution to rebut the same.
* * * * * (b) Other Crimes, Wrongs, or Acts.
* * * * * (4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Comment--2006 [The basic principle of Pa.R.E. 404 is consistent with F.R.E. 404 and prior Pennsylvania case law. Pa.R.E. 404, with certain enumerated exceptions, provides that character evidence cannot be used to prove conduct. Under this rule, evidence that an employee had a character trait of absent-mindedness would not be admissible to prove that on a particular occasion he or she failed to fasten the safety latch on a piece of equipment. The rule does not preclude the use of character evidence for other purposes, including where character is an element of a claim or defense. See, e.g., Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968) (negligent employment); Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super 484, 422 A.2d 572 (1980) (parental fitness).
The exceptions to the rule differ from F.R.E. 404 as indicated below.
Subsection (a). Subsection (a) of the rule differs from F.R.E. 404(a).
Paragraph (a)(1) has not been amended to conform with the December 1, 2000 amendments to F.R.E. 404(a)(1), which provide that the prosecution may respond to the accused's offer of evidence of the character of the alleged victim of a crime by offering evidence of the same trait of character of the defendant.
Subsection (a)(2) is consistent with prior Pennsylvania case law. See, e.g., Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991); Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971); see also Pa. R.E. 405 (regarding means of proof of the complainant's character for violence).
The exception provided at Pa.R.E. 404(a)(2)(iii) does not appear in the federal rule. It is consistent with Pennsylvania decisional law. See Bell v. Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985).
Subsection (b). This paragraph is similar to F.R.E. 404(b) in recognizing legitimate evidentiary purposes for the introduction of evidence of other crimes, wrongs or bad acts. Unlike the Federal rule, however, Pennsylvania law provides a distinct standard for balancing the inherent prejudice of such evidence against its probative value. Under federal law, if evidence of other crimes, wrongs or bad acts is offered for a legitimate evidentiary purpose, the evidence is admissible if it meets the general standard of F.R.E. 403. F.R.E. 403 provides that relevant evidence is admissible unless its probative value is substantially outweighed by prejudicial danger. Under Pennsylvania law, evidence of other crimes, wrongs or bad acts offered for a legitimate evidentiary purpose is admissible only if its probative value outweighs the potential for prejudice. See Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). Pa.R.E. 404(b)(3) codifies Pennsylvania decisional law and is an exception to the general rule defined by Pa.R.E. 403.]
Pa.R.E. 404 is an exception to the general rule set forth in Pa.R.E. 402 that all relevant evidence is admissible. Pa.R.E. 404 is, in principle, consistent with F.R.E. 404. However, the Pennsylvania rule uses more subdivisions to enhance clarity and readability. A few substantive differences accommodate Pennsylvania statutory and prior case law.
Section (a)
This section promulgates a general rule that evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion. The rationale is that the relevance of such evidence is usually outweighed by its potential for creating unfair prejudice, particularly with a jury.
This general rule of inadmissibility is consistent with prior Pennsylvania case law. See, e.g., Greenberg v. Aetna Ins. Co., 427 Pa. 494, 235 A.2d 582 (1967) (error to permit the plaintiff to testify that he served in the United States Armed Forces in World War II and distinguished himself with a heroic record).
This section does not preclude the introduction of evidence of a person's character, or trait of character, to prove something other than conduct in conformity therewith. For example, a party must sometimes prove a person's characteristic because it is an element of the party's claim or defense. See, e.g., Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968) (alleged negligent employment of a violence-prone security guard); Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super 484, 422 A.2d 572 (1980) (parental fitness in a custody case); Christiansen v. Silfies, 446 Pa. Super. 464, 667 A.2d 396 (1995) (alleged negligent entrustment of a truck to a man with a poor driving record).
A person's trait of character is not the same as a person's habit. The distinction is discussed in the Comment to Rule 406, infra. If a person's trait of character leads to habitual behavior, evidence of the latter is admissible to prove conduct in conformity therewith on a particular occasion, pursuant to Rule 406.
Like the federal rule, section (a) has three subsections of exceptions. They should be read together with section (a) of Rule 405, which describes two methods of proving a person's character, or trait of character.
Subsection (1), which deals with the character of a defendant in a criminal case, is essentially the same as subsection (1) of F.R.E. 404(a). It allows the defendant to ''put his character in issue,'' usually by calling character witnesses to testify to his good reputation for a law-abiding disposition, or other pertinent trait of character. If the defendant does so, the Commonwealth may (1) cross-examine such witnesses, subject to the limitations imposed by Rule 405(a), and (2) offer rebuttal evidence.
If a defendant in a criminal case chooses to offer evidence of a pertinent trait of character of an alleged victim under subsection (2)(i), then subsection (1) allows the Commonwealth to offer evidence that the defendant has the same trait of character. For example, in an assault and battery case, if the defendant introduces evidence that the alleged victim was a violent and belligerent person, the Commonwealth may counter by offering evidence that the defendant was also a violent and belligerent person. Thus, the jury will receive a balanced picture of the two participants to help it decide who was the first aggressor.
Subsection (2), unlike subsection (2) of F.R.E. 404(a), is divided into three subsections.
Subsection (i), like the federal rule, gives an accused the right to introduce evidence of a pertinent trait of character of the alleged victim of the crime with which the accused is charged. However, the Pennsylvania rule differs from the federal rule by recognizing statutory limitations on this right. In particular, 18 Pa.C.S. § 3104 (the Rape Shield Law) often prohibits the accused from introducing evidence of the alleged victim's past sexual conduct, including reputational evidence thereof. See Comment under Rule 412 (not adopted), infra.
Subsection (ii), which is essentially the same as the federal rule, applies only in homicide cases in which the defendant offers evidence that the deceased was the first aggressor. It allows the Commonwealth to rebut the defendant's evidence by introducing evidence of the deceased's good reputation for peacefulness.
Subsection (iii), which applies only to a civil action for assault and battery, is not part of the federal rule. It is based on Bell v. Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985).
Section (b)
While Pa.R.E. 404(b) uses the comprehensive word ''acts,'' the vast majority of cases applying it, and its federal counterpart, are criminal cases that deal with bad acts, i.e., acts that are also either crimes or non-criminal wrongs. However, the rule applies in civil cases, too, and it applies to good acts as well. See Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 2003), interpreting the similar federal rule.
Evidence of other crimes, wrongs or bad acts, is powerful evidence. This is particularly so when it is offered against a defendant in a criminal case. By far the issue most often litigated under Rule 404(b) is whether such evidence can be introduced against an accused for some reason other than to prove that the accused acted in conformity with his (or her) prior bad conduct.
Section (b) is similar to section (b) of F.R.E. 404. Unlike the federal rule, it is divided into four subsections to enhance clarity:
Subsection (1), which uses the same language as the federal rule, treats evidence of other crimes, wrongs, or acts, the same as section (a) treats evidence of a person's character, or trait of character, i.e., it makes such evidence inadmissible to prove conduct in conformity therewith.
Subsection (1) is consistent with prior Pennsylvania case law. See Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975) (in murder case, reversible error to admit evidence that the defendant participated in six robberies other than the one that culminated in the murder with which he was charged); Commonwealth v. Seiders, 531 Pa. 592, 614 A.2d 689 (1992) (in statutory rape case, reversible error to admit evidence that the defendant had previously been convicted of indecent assault and endangering the welfare of children).
Subsection (1) rejects an alternate holding in Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), a murder case in which the defendant pled self-defense, that it was error to preclude the defendant from introducing the alleged victim's criminal record to prove that the victim was a man of ''quarrelsome and violent character,'' and thus the aggressor.
Subsection (2), like the federal rule, contains a non-exhaustive list of purposes, other than proving character in order to show action in conformity therewith, for which evidence of other crimes, wrongs, or acts committed by a person may be admitted. When the evidence is admitted for such a purpose, the party against whom it is offered is entitled, upon request, to a limiting instruction to the jury. See Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002). See also Pa.R.E. 105.
Subsection (3) is an adjunct to subsection (2). However, subsection (3) applies only in criminal cases. Unlike the federal rule, it creates a special balancing test that makes it harder for a party, usually but not always the Commonwealth, to introduce relevant evidence of other crimes, wrongs, or acts committed by a person. Under Rules 402 and 403, most other evidence, as far as relevance is concerned, is admissible unless its probative value is outweighed by one or more of the six negative factors set forth in Rule 403. Under subsection (3), relevant evidence of other crimes, wrongs, or acts committed by a person is admissible only if its probative value outweighs its potential for prejudice. This is a codification of an evidential rule enunciated in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981).
When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether, and how much, such potential for prejudice can be reduced by cautionary instructions. See Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192 (1993); Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995); Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295 (1996).
Subsection (4), which applies only in criminal cases, and only to the Commonwealth, requires that reasonable notice be given before evidence of other crimes, wrongs, or acts is introduced at trial. It is the same as the federal rule. Its purpose is to prevent unfair surprise, and to give the defendant reasonable time to prepare an objection to, or ready a rebuttal for, such evidence.
FINAL REPORT
Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
Rule Amendment and Revision of Comment In Pa.R.E. 404(a)(2), the word ''complainant'' is changed to ''alleged victim'' to conform with the federal rule and the rules in other states. This subsection is subordinated to statutory limitations in order to accommodate the Rape Shield Law with which the current subsection conflicts.
Unlike F.R.E. 404(a)(1), the Pennsylvania rule fails to give the prosecution the right to counter defense evidence of a character trait of the victim. Thus, the defense could introduce character evidence of the victim but the prosecution could not counter with character evidence of the defendant. The proposed amendment allows for a balanced picture of the participants.
With respect to subsection (b)(4), the federal rule as well as the rule in other states requires only that the prosecution give notice of the ''general nature'' of other crimes evidence it intends to offer, whereas under the Pennsylvania rule ''general nature'' is not sufficient. The proposed change conforms our rule to the federal rule.
[Pa.B. Doc. No. 06-419. Filed for public inspection March 17, 2006, 9:00 a.m.]
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