Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts.
(a) Character Evidence.
(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.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(4) Exception in a Civil Action for Assault and Battery. In a civil action for assault and battery, evidence of the plaintiff’s character trait for violence may be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. 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.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it, or during trial if the court excuses pretrial notice on good cause shown, of the specific nature, permitted use, and reasoning for the use of any such evidence the prosecutor intends to introduce at trial.
Comment Pa.R.E. 404(a) differs from F.R.E. 404(a). There are two differences. First, F.R.E. 404(a)(2)(B) gives the defendant the right to introduce evidence of a pertinent trait of character of the alleged victim of the crime subject to the limitations in F.R.E 412. The Pennsylvania Rule differs in that Pennsylvania has not adopted Rule 412. Instead, Pennsylvania recognizes statutory limitations on this right. In particular, 18 Pa.C.S. § 3104 (the Rape Shield Law) often prohibits the defendant from introducing evidence of the alleged victim’s past sexual conduct, including reputation evidence. See Comment to Pa.R.E. 412 (Not Adopted), infra. Second, Pa.R.E 404(a)(4), 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).
Pa.R.E 404(a)(1) prohibits the use of evidence of a person’s character or trait of character to prove conduct in conformity therewith on a particular occasion. The rationale is that the relevance of such evidence is usually outweighed by its tendency to create unfair prejudice, particularly with a jury. This does not prohibit 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 character or trait of character because it is an element of the party’s claim or defense. See Pa.R.E. 405(b) and its Comment.
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.
Pa.R.E. 404(a)(2)(A) which deals with the character of a defendant in a criminal case, is identical to F.R.E. 404(a)(2)(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 (a)(2)(B), then subsection (a)(2)(B)(ii) 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.
Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It prohibits the use of evidence of other crimes, wrongs, or acts to prove a person’s character.
Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a non-exhaustive list of purposes, other than proving character, for which a person’s other crimes, wrongs, or acts may be admissible. But it differs in that Pa.R.E. 404(b)(2) requires the probative value of the evidence to outweigh its potential for prejudice. 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. LaCava, 666 A.2d 221 (Pa. 1995). When evidence is admitted for this purpose, the party against whom it is offered is entitled, upon request, to a limiting instruction. See Commonwealth v. Hutchinson, 811 A.2d 556 (Pa. 2002).
Notice pursuant to subdivision (b)(3) must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence. See Pa.R.E. 609(b)(2) and 902(11). Notice should be sufficiently in advance of trial so the defendant and court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Pa.R.E. 403 have been satisfied notwithstanding that a final determination as to the admissibility of the evidence must await trial. See, e.g., Commonwealth v. Hicks, 91 A.3d 47, 53-54 (Pa. 2014). The court may excuse the pretrial notice requirement upon a showing of good cause. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced.
Official Note
Adopted May 8, 1998, effective October 1, 1998; Comment revised November 2, 2001, effective January 1, 2002; rescinded and replaced January 17, 2013, effective March 18, 2013; amended December 2, 2021, effective April 1, 2022.
Committee Explanatory Reports:
Final Report explaining the November 2, 2001 revision of Subsection (a) of the Comment published with the Court’s Order at 31 Pa.B. 6384 (November 24, 2001).
Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).
Final Report explaining the December 2, 2021 amendment of paragraph (b) published with the Court’s Order at 51 Pa.B. 7859 (December 18, 2021).
Source The provisions of this Rule 404 amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381; amended February 28, 2006, effective immediately, 36 Pa.B. 1213 (March 18, 2006); rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended December 2, 2021, effective April 1, 2022, 51 Pa.B. 7858. Immediately preceding text appears at serial pages (406170) and (365865) to (365866).
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