Acts With a Different Job: Rule 404(b) and Nonpropensity Uses

Character as Conduct Proof: The Rule 404(a) Gate

Character evidence is proof of a person’s trait offered to support an inference that the person acted consistently with that trait on the occasion in dispute. Rule 404(a)(1) generally bars that inference: evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with it on a particular occasion.

The principal exceptions arise in a criminal case:

Under Rule 404(a)(2)(A), the defendant may offer evidence of the defendant’s pertinent trait. If the court admits it, the prosecution may rebut it.
Under Rule 404(a)(2)(B), the defendant may offer evidence of the alleged victim’s pertinent trait. If admitted, the prosecution may rebut it and may offer evidence of the defendant’s same trait.
Under Rule 404(a)(2)(C), in a homicide case, the prosecution may offer evidence of the alleged victim’s peacefulness to rebut evidence that the victim was the first aggressor.

“Pertinent” means connected to a conduct issue in the case. A defendant charged with assault may offer a peacefulness trait; a defendant charged with fraud ordinarily may not offer a general trait of kindness unless that trait bears on a disputed issue. The prosecution cannot introduce the defendant’s bad character first merely to suggest guilt. The prosecution’s ability to rebut is conditional on the defendant’s permitted character evidence, except for the homicide peacefulness provision in Rule 404(a)(2)(C).

These criminal-case permissions do not create a general civil-case character exception. In a civil case, character evidence offered only to show conduct in conformity remains barred by Rule 404(a)(1). Character may nevertheless be admissible when character itself is an element of a claim, charge, or defense; that situation is governed by Rule 405(b), discussed below. Evidence offered for a genuinely noncharacter purpose is analyzed under the rule governing that purpose rather than treated as ordinary propensity evidence.

A crucial near miss is the victim’s known conduct. Suppose a defendant knew that the victim had previously attacked someone with a knife and offers that fact to show why the defendant reasonably feared the victim. The fact may be offered for its effect on the defendant’s state of mind, not to show that the victim acted violently on the charged occasion. By contrast, if the defendant did not know about the attack and offers it only to show that the victim was violent and therefore probably attacked first, the evidence is character evidence and the Rule 404(a) and 405 limits apply.

Rule 412 creates a separate restriction in proceedings involving alleged sexual misconduct. It generally bars evidence offered to prove that an alleged victim engaged in other sexual behavior or has a sexual predisposition. In a criminal case, specified exceptions include evidence of particular sexual behavior offered to show that someone other than the accused was the source of semen, injury, or other physical evidence; particular sexual behavior with the accused offered by the accused to prove consent; and evidence whose exclusion would violate the Constitution. In a civil case, such evidence is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice. Do not use Rule 404(a)(2) as a way around Rule 412.

Rules 413 through 415 are special statutory exceptions for sexual-assault and child-molestation evidence. Rule 413 permits, in a criminal sexual-assault case, evidence that the defendant committed another sexual assault; Rule 414 does the same for another child molestation in a child-molestation prosecution; and Rule 415 permits such evidence in a civil case involving a claim for relief based on conduct that could constitute sexual assault or child molestation. These rules permit the factfinder to consider the other act on any relevant matter, including propensity, subject to the applicable safeguards such as Rule 403 and notice requirements. They are genuine exceptions to the ordinary ban on propensity reasoning.

This chapter is closed-book: you must be able to state Rules 404(a), 404(b), 405, and 406 and their limits from memory.

Rule 404(b)(1) bars evidence of a crime, wrong, or other act when offered to prove a person’s character in order to show that the person acted in conformity with that character. The fact that the other act is highly similar, embarrassing, or criminal does not change the analysis. If the proposed chain is “the defendant committed a similar wrong before, so the defendant probably committed this one,” Rule 404(b)(1) excludes it.

Rule 404(b)(2), however, permits the evidence for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The list is illustrative, not a license to relabel propensity. The proponent must identify a proposition that matters in the case and explain how the other act actually makes that proposition more or less probable without relying merely on bad character.

Run the analysis in this order:

Identify the act and the precise inference. Ask what the jury is being invited to conclude from the other act. A prosecutor’s statement that evidence shows “intent” is insufficient if the real argument is simply that the defendant is dishonest.
Test the proposed purpose. Intent, knowledge, or absence of mistake must genuinely be disputed or consequential. If the defendant admits knowingly making the transaction, an earlier transaction may have little legitimate work to do.
Connect the act to the purpose. A prior act may show knowledge when it occurred under sufficiently similar circumstances and made the defendant aware of a fact now disputed. It may show identity when distinctive features link the actor to the charged event; generic similarity is usually only propensity.
Determine whether the act occurred. The court may admit the evidence if there is sufficient evidence for a reasonable jury to find by a preponderance that the other act occurred. The jury need not find beyond a reasonable doubt that the act occurred.
Apply the remaining limits. The evidence must still satisfy the relevance requirement and survive Rule 403. A legitimate nonpropensity purpose does not make every damaging detail admissible.

In a criminal case, Rule 404(b)(3) requires the prosecutor to give reasonable notice of the other-act evidence the prosecutor intends to offer, so the defendant has a fair opportunity to meet it. The notice must ordinarily be in writing before trial, unless the court excuses the timing for good cause; the court may also allow notice during trial for good cause. Notice is an additional criminal-case requirement, not a substitute for proving a valid nonpropensity purpose.

The sequence is easier to preserve when the categories are separated before admissibility is considered:

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Proof Form and Repeated Conduct: Rules 405 and 406

When character evidence is admissible under Rule 404, Rule 405(a) supplies the ordinary methods of proof. The proponent may use:

Reputation testimony: a witness describes the person’s reputation for the pertinent trait in the relevant community.
Opinion testimony: a witness gives a personal opinion about the person’s pertinent trait based on sufficient familiarity.

On cross-examination of that character witness, the court may permit inquiry into relevant specific instances of the person’s conduct. The purpose is to test the witness’s knowledge and the basis or accuracy of the asserted reputation or opinion. The cross-examiner’s question about a particular incident does not turn that incident into independent character proof for the proponent. The proponent generally may not bypass the reputation-or-opinion limitation by calling a witness simply to recite specific bad acts.

Rule 405(b) permits specific instances of conduct when character is an essential element of a claim, charge, or defense. Examples include negligent entrustment, defamation issues in which character is directly at issue, and certain custody disputes. The specific act is then direct proof of the character fact the law makes consequential, not merely circumstantial evidence that the person acted consistently with a trait.

The dividing line is narrow but important:

Feature	Rule 404(a) character	Rule 404(b) other act	Rule 406 habit
Central inference	Trait supports conduct conformity	Act supports a noncharacter proposition	Repeated response supports conduct conformity
Trigger	Pertinent trait offered as propensity	Crime wrong or act offered for motive intent knowledge identity or another permitted purpose	Repeated response to a particular situation
Ordinary proof	Reputation or opinion under Rule 405(a)	Evidence of the act itself if the nonpropensity purpose is genuine	Evidence of regular practice or conduct
Decisive limit	Propensity generally barred except specified exceptions	Relabeling propensity does not work	General disposition is not enough

A witness’s testimony that “the defendant is careless” is ordinary character evidence if offered to show careless conduct on the occasion in dispute. Testimony that the defendant “always records the meter reading before opening a valve” may be habit evidence if it describes a sufficiently regular response to a specific recurring situation. Testimony that a company’s shipping department routinely scans every package before loading may establish organizational routine practice.

Rule 406 governs habit and an organization’s routine practice. It permits evidence of the habit or routine practice, whether corroborated or not and regardless of eyewitness testimony, to prove that the person or organization acted in accordance with the habit or practice on the occasion in dispute. The evidence remains subject to the ordinary limits on admissibility, including Rule 403.

Habit is not established by a witness’s conclusion that someone is generally careful, honest, aggressive, or safety-conscious. Courts look for regularity, specificity, and sufficient repetition. There is no fixed number of prior instances. The question is whether the conduct is a semi-automatic response to a particular, recurring situation rather than a discretionary choice reflecting a broad personality trait.

The near-misses are decisive:

“She is a careful driver” describes character; “she stops at every red light she encounters” may describe habit.
“The hospital takes safety seriously” describes general disposition; “the hospital’s nurses record a patient’s allergy before administering every medication” describes routine practice.
“He once checked the lock before leaving” is a specific act, not habit; repeated checking under recurring circumstances may be habit.
A specific act offered to prove a character trait is limited by Rule 405; repeated conduct offered directly as a regular response is analyzed under Rule 406.
Habit does not require the conduct to be literally automatic, but ordinary variations or substantial discretion weaken the inference of routine practice.

A character witness may be asked on cross about a particular incident; a habit witness may testify directly about the repeated practice itself. That difference in proof form often decides the result.

A defendant is charged with assaulting Victor in a bar fight. The defendant claims Victor attacked first.

The defendant offers a neighbor to testify that, two years earlier, Victor struck another person with a bottle.

The defendant does not claim to have known about the earlier attack and offers it only to show that Victor was violent and therefore probably attacked first.

The prosecution objects under the Federal Rules of Evidence.

Practice

How should the court rule on the defendant’s offer of the neighbor’s testimony?

Three Fast Rulings: Character, Other Acts, and Habit

Practice

In a federal assault prosecution, the defendant claims he did not strike the alleged victim. The defendant offers a coworker who has known him for ten years to testify that he has a reputation for peacefulness. The prosecution objects that character evidence is never admissible in a criminal case. Which ruling is correct?

In a federal fraud prosecution, the government gives timely written notice that it will offer evidence that the defendant used a false invoice in a different transaction. The government offers the evidence to prove knowledge and absence of mistake, presents sufficient evidence for a jury to find by a preponderance that the earlier transaction occurred, and the court finds that the danger of unfair prejudice, confusion, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence does not substantially outweigh the evidence’s probative value. What is the best ruling?

For eight years, a company driver has stopped at every red light encountered while making deliveries, even when no other traffic was present. The company offers testimony about this regular practice to prove that the driver stopped at the red light involved in the accident. Which ruling is best?

High-Yield Points - ⚡ Biggest Takeaways

Use Rule 404(a) when a trait is offered to show conduct conformity; begin with the propensity inference. Use Rule 404(b) only for a genuine nonpropensity purpose, and state that purpose precisely. Rule 405 limits character proof; Rule 406 directly admits sufficiently regular responses to specific recurring situations.

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Practice Questions: Character evidence, other acts, and habit

1. A delivery driver sued a warehouse owner after a loading-platform railing collapsed. Two days after the accident, the owner replaced the railing and added warning signs. At trial, the owner denies owning the platform and contends that a neighboring business controlled it. The driver offers the owner's work order directing employees to replace "our damaged platform railing." The driver states that the work order is offered only to prove ownership and control, not negligence or culpable conduct. The owner objects that evidence of repairs made after an accident is inadmissible. Which of the following best states how the court should rule?

A. Exclude the work order because evidence of a subsequent repair is inadmissible for every purpose.
B. Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose.
C. Exclude the work order unless the driver first proves that the owner acted negligently before making the repair.
D. Admit the work order as proof that the original railing was defective because the repair acknowledges the defect.

Show answer

Answer: B. Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose.

Admit the work order because ownership or control is disputed and the evidence is offered for that permitted purpose. - Rule 407 permits evidence of a subsequent remedial measure to prove ownership or control when that issue is disputed. - The owner denies controlling the platform, and the work order’s reference to “our damaged platform railing” bears on that dispute; the court may limit the jury to that use. Exclude the work order because evidence of a subsequent repair is inadmissible for every purpose. - Rule 407 does not bar subsequent-repair evidence for every purpose. - Because the owner disputes ownership and control, the driver may offer the work order on those issues rather than to prove negligence. Exclude the work order unless the driver first proves that the owner acted negligently before making the repair. - Rule 407 imposes no requirement that the driver first prove negligence to use the work order for disputed control. - The driver’s stated purpose is to show who controlled the platform, not whether the owner acted negligently. Admit the work order as proof that the original railing was defective because the repair acknowledges the defect. - Rule 407 does not permit the driver to use the replacement as proof that the original railing was defective. - The work order may be considered for disputed ownership or control, but the repair cannot be treated as an admission of liability.

2. A pedestrian sued a delivery company after one of its vans struck her in a crosswalk. The company disputes whether the pedestrian entered the crosswalk against the signal. The pedestrian offers testimony from a traffic engineer that, during an inspection conducted two weeks after the collision at the same time of day, a tree partially blocked drivers’ view of the pedestrian signal. Weather records show that there had been no storm or pruning between the collision and inspection, and photographs taken on both dates show the tree in substantially the same condition. The company objects that the inspection occurred after the collision and that the testimony may cause jurors to decide the case based on a different event. The pedestrian offers the testimony to show what the driver could see when approaching the crosswalk. Is the court likely to admit the testimony?

A. Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal.
B. Yes, because relevant evidence cannot be excluded merely because it may influence the jury’s assessment of a disputed fact.
C. No, because observations made after an accident are inadmissible unless the opposing party attended the inspection.
D. No, because the later inspection creates unfair prejudice that substantially outweighs its probative value.

Show answer

Answer: A. Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal.

Yes, because the inspection conditions were shown to be substantially similar, and the testimony is probative of the driver’s ability to see the signal. - The engineer’s observation is probative of visibility because the photographs show the tree in substantially the same condition on the collision and inspection dates. - The absence of storms or pruning supports admitting the later observation; the two-week gap goes to its weight. Yes, because relevant evidence cannot be excluded merely because it may influence the jury’s assessment of a disputed fact. - The testimony is relevant because it helps establish what the driver could see when approaching the crosswalk. - But relevant evidence can be excluded under Rule 403 if a qualifying danger substantially outweighs its probative value. No, because observations made after an accident are inadmissible unless the opposing party attended the inspection. - The company’s attendance is not a prerequisite to admitting the engineer’s observations. - The pertinent question is whether conditions at the later inspection were sufficiently similar to those at the collision. No, because the later inspection creates unfair prejudice that substantially outweighs its probative value. - Jurors drawing an inference about visibility from the engineer’s testimony is its proper evidentiary use, not unfair prejudice. - The substantially unchanged tree supports probative value, and the record identifies no Rule 403 danger that substantially outweighs it.

3. A factory worker brought a negligence action against a press manufacturer after the press crushed his hand. The worker claims that the press should have included a fixed barrier preventing an operator's hand from reaching the compression area. After the accident, the manufacturer added such a barrier to newly produced presses. Before trial, the manufacturer's expert testified that adding a fixed barrier to this model was not technically feasible because it would prevent operators from positioning materials. The worker seeks to introduce evidence of the post-accident design change solely to rebut that testimony. The manufacturer objects that the change is a subsequent remedial measure and that the jury might misuse it as proof of negligence. Is the court likely to admit the evidence?

A. Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence.
B. Yes, because subsequent remedial measures are excluded only when undertaken by someone other than the defendant.
C. No, because a subsequent design change is inadmissible for every purpose when it could suggest earlier negligence.
D. No, because feasibility evidence is admissible only if the manufacturer expressly stipulated that the original design was unsafe.

Show answer

Answer: A. Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence.

Yes, because the manufacturer disputed feasibility and the court may give a limiting instruction restricting the jury's use of the evidence. - Under Federal Rule of Evidence 407, a subsequent design change may be admitted to prove feasibility when feasibility is disputed; the manufacturer’s expert testified that a fixed barrier would prevent operators from positioning materials. - The court may give a limiting instruction allowing the jury to consider the new barrier on feasibility, but not as proof that the manufacturer was negligent. Yes, because subsequent remedial measures are excluded only when undertaken by someone other than the defendant. - Rule 407 generally restricts the use of a defendant’s subsequent remedial measures to prove negligence; it does not apply only to measures taken by someone else. - The manufacturer’s change may be admitted here because its expert disputed feasibility, not because the manufacturer was exempt from the rule. No, because a subsequent design change is inadmissible for every purpose when it could suggest earlier negligence. - Rule 407 does not bar a subsequent remedial measure for every purpose merely because a jury might also view it as evidence of negligence. - The worker offers the added barrier solely to rebut the expert’s claim that such a barrier was not technically feasible, a permitted purpose when feasibility is disputed. No, because feasibility evidence is admissible only if the manufacturer expressly stipulated that the original design was unsafe. - A stipulation that the original design was unsafe is not required to admit a subsequent measure to prove disputed feasibility. - The expert’s testimony that a fixed barrier would interfere with positioning materials itself placed feasibility in dispute.

4. A factory worker brought a negligence action against an equipment leasing company after the worker's hand passed through an opening beside a blade on a machine the leasing company had supplied and serviced. Two months after the accident, the leasing company added a wider guard to the machine. The worker proposes to introduce evidence of that change. The leasing company disputes that it had control over maintaining the machine at the time of the accident, contending that the factory owner alone was responsible for its upkeep. The worker argues that the evidence should be admitted specifically to establish control. Which of the following best states how the court should rule?

A. Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control.
B. Admit the evidence to prove that the leasing company was negligent because the replacement reduced the risk.
C. Exclude the evidence because post-accident remedial measures are inadmissible for every purpose.
D. Exclude the evidence because control is irrelevant whenever a plaintiff alleges negligent maintenance.

Show answer

Answer: A. Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control.

Admit the evidence to show that the leasing company had control over the machine because the leasing company disputes control. - Adding a wider guard two months later was a subsequent remedial measure, but Rule 407 permits such evidence to prove control when control is disputed. - Because the leasing company denies responsibility for maintaining the machine at the time of the accident, its later alteration is relevant to control, not proof of negligence. Admit the evidence to prove that the leasing company was negligent because the replacement reduced the risk. - A wider guard may have reduced the risk of a hand reaching the blade, but Rule 407 bars using the later change to prove negligence. - The worker’s stated purpose—establishing disputed control—is what makes the evidence admissible. Exclude the evidence because post-accident remedial measures are inadmissible for every purpose. - Rule 407 does not impose an absolute bar: a subsequent remedial measure may be admitted to prove control when that issue is disputed. - The leasing company’s claim that the factory owner alone handled upkeep makes that exception applicable here. Exclude the evidence because control is irrelevant whenever a plaintiff alleges negligent maintenance. - Control matters to a negligent-maintenance claim because it bears on who was responsible for maintaining the machine. - The leasing company expressly disputes that responsibility, so its addition of the guard has a permissible evidentiary purpose.

5. A pedestrian sued a grocery store in federal court after tripping over an unguarded loading-ramp edge. The pedestrian alleges that the store negligently failed to install a protective railing. At trial, the store's facilities director testifies that the store did not own or control the loading ramp because that portion of the property had been leased to an independent contractor responsible for its maintenance. The pedestrian then offers evidence that, one week after the accident, the store's own maintenance crew installed a protective railing on the ramp. The pedestrian offers the evidence only to rebut the director's assertion that the store lacked control over the ramp. The store objects under the rule excluding subsequent remedial measures. Which of the following is the court's most appropriate ruling?

A. Exclude the evidence because subsequent remedial measures cannot be admitted for any purpose in a negligence action.
B. Exclude the evidence because control is relevant only if the store expressly concedes that it controlled the ramp.
C. Admit the evidence for the limited purpose of proving control because the store placed control in dispute.
D. Admit the evidence as substantive proof that the store was negligent because the later repair establishes the applicable standard of care.

Show answer

Answer: C. Admit the evidence for the limited purpose of proving control because the store placed control in dispute.

Admit the evidence for the limited purpose of proving control because the store placed control in dispute. - Federal Rule of Evidence 407 permits a subsequent remedial measure to prove control when control is disputed, and the facilities director denied that the store controlled the ramp. - The store’s own crew installed the railing, making that work relevant to control; if requested, the court should instruct the jury to consider it only for that purpose. Exclude the evidence because subsequent remedial measures cannot be admitted for any purpose in a negligence action. - Rule 407 bars using the later railing installation to prove negligence, but it does not bar every use of that evidence. - The pedestrian offers the crew’s work to rebut the director’s denial of control, a permitted use. Exclude the evidence because control is relevant only if the store expressly concedes that it controlled the ramp. - The director’s testimony that an independent contractor controlled the ramp disputes control rather than conceding it. - That dispute is why the store’s subsequent installation of a railing can be considered as evidence of control. Admit the evidence as substantive proof that the store was negligent because the later repair establishes the applicable standard of care. - Rule 407 prohibits using the later railing installation as proof that the store acted negligently before the accident. - The crew’s work may bear on who controlled the ramp, but it does not establish the applicable standard of care.

6. A factory worker brought a products-liability action against the manufacturer of a conveyor belt system after the worker's arm was caught in an unguarded pinch point. The worker alleges that the system was defectively designed because a readily available guard could have prevented the injury. At trial, the manufacturer's plant supervisor testified, "We never even considered adding a guard to that pinch point because we didn't think one was necessary." The worker then offered evidence that, one month after the accident, the manufacturer added a guard over the pinch point on the same model of conveyor system. The manufacturer objected. The worker stated that the evidence was offered only to impeach the supervisor's testimony that a guard had never been considered, not to prove negligence or a defective design. How should the court rule?

A. Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered.
B. Admit the evidence because post-accident design changes are substantive proof that the earlier design was defective.
C. Exclude the evidence because a later safety measure cannot be used for any purpose in a products-liability action.
D. Exclude the evidence because later design changes are privileged communications prepared in anticipation of litigation.

Show answer

Answer: A. Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered.

Admit the evidence because it may be used to impeach the supervisor's testimony that a guard was never considered. - The supervisor’s categorical statement that the manufacturer never considered a guard is open to impeachment with evidence that the manufacturer later added one to the same model. - The court may admit the later change for that limited impeachment purpose, not as proof that the earlier design was defective. Admit the evidence because post-accident design changes are substantive proof that the earlier design was defective. - Under the subsequent-remedial-measures rule, adding a guard after the accident cannot be used to prove a product defect. - The worker offered the change to challenge the supervisor’s testimony, not as substantive proof that the unguarded pinch point was defective. Exclude the evidence because a later safety measure cannot be used for any purpose in a products-liability action. - The rule is not an absolute bar: a subsequent measure may be admitted for a permitted purpose such as impeachment. - Here, the worker identified the supervisor’s statement that a guard was never considered as the testimony to be impeached. Exclude the evidence because later design changes are privileged communications prepared in anticipation of litigation. - Adding a guard is a design change, not a privileged communication. - Nothing in the facts establishes that evidence of the change was prepared in anticipation of litigation.

7. A warehouse worker brought a federal products-liability action against a forklift manufacturer after being struck when the forklift backed over his foot. The worker alleged that the forklift should have included a rear-facing camera system to alert operators to obstacles behind the vehicle. During discovery, the manufacturer asserted that such a camera system could not be reliably installed given the dust and vibration present in typical warehouse environments. Three months after the accident, the manufacturer began selling the same forklift model equipped with a rear-facing camera system rated for dusty, high-vibration conditions. The worker offers the redesigned camera system solely to rebut the manufacturer's feasibility assertion. The manufacturer objects that the redesign was a subsequent remedial measure and also argues that displaying it would unfairly prejudice the jury. Which of the following is the strongest response to the objection?

A. The camera system is inadmissible because post-accident safety changes cannot be used for any purpose.
B. The camera system is admissible because later safety changes are direct evidence that the original forklift was defective.
C. The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed.
D. The camera system is inadmissible unless the worker first proves that the manufacturer controlled the warehouse after the accident.

Show answer

Answer: C. The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed.

The camera system is admissible to address feasibility because the manufacturer disputed that a workable camera system could be installed. - Federal Rule of Evidence 407 permits a subsequent remedial measure to show feasibility when feasibility is disputed, and the manufacturer claimed a camera could not work reliably in dusty, high-vibration warehouses. - The later camera system addresses that claim; the court must still weigh its probative value against any risk of unfair prejudice under Rule 403. The camera system is inadmissible because post-accident safety changes cannot be used for any purpose. - Rule 407 does not impose an absolute bar: it permits evidence of a later change to show disputed feasibility. - The manufacturer's assertion that a reliable camera could not be installed makes that permitted purpose relevant here. The camera system is admissible because later safety changes are direct evidence that the original forklift was defective. - Rule 407 bars using the post-accident redesign to prove a product defect directly. - The worker instead offers the camera system solely to rebut the manufacturer's claim that installing a workable system was infeasible. The camera system is inadmissible unless the worker first proves that the manufacturer controlled the warehouse after the accident. - Control of the warehouse is not a prerequisite to admitting evidence that the manufacturer later sold the same forklift model with a camera. - The disputed issue is whether such a system could work under warehouse conditions, not who controlled the warehouse after the accident.

8. A customer sued a grocery store after slipping and falling on a wet floor in the produce aisle. The customer alleges that the store's flooring was unreasonably slippery. Two days after the fall, before any government investigation, the store replaced the flooring throughout the entire building with a non-slip surface. At trial, the store disputes both negligence and whether it controlled the produce aisle at the time of the fall but does not dispute that safer, non-slip flooring was technologically feasible. The customer offers evidence of the flooring replacement to prove that the original floor was unreasonably dangerous. The store objects. Which of the following best states how the court should rule?

A. Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure.
B. Admit the evidence because replacing the flooring tends to show that the earlier floor caused the fall.
C. Admit the evidence because the store disputes control of the aisle where the fall occurred.
D. Exclude the evidence under Rule 403 because remedial measures have no permissible evidentiary use.

Show answer

Answer: A. Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure.

Exclude the evidence because it is offered to prove culpable conduct through a subsequent remedial measure. - Replacing the flooring after the fall with a non-slip surface is a subsequent remedial measure because it could have made the fall less likely. - The customer offers it to prove the original floor was unreasonably dangerous, a use Rule 407 prohibits. Admit the evidence because replacing the flooring tends to show that the earlier floor caused the fall. - The replacement may support an inference about the earlier floor, but the customer offers that inference to prove the store’s culpable conduct. - Its relevance does not overcome Rule 407’s exclusion for that purpose. Admit the evidence because the store disputes control of the aisle where the fall occurred. - Control is disputed, and Rule 407 can permit remedial-measure evidence offered to prove control. - The customer instead offers the replacement to prove the original floor was unreasonably dangerous, so that exception does not justify admission for the stated purpose. Exclude the evidence under Rule 403 because remedial measures have no permissible evidentiary use. - Rule 407, not a conclusion that the evidence has no permissible use, governs the customer’s stated offer. - A subsequent measure may be admissible for another disputed purpose, such as control, even though it cannot be used here to prove culpable conduct.

Flashcards: Character evidence, other acts, and habit

1. For what purposes may evidence of a person’s other act be admitted under FRE 404(b)?

Show answer

Other-act evidence may be admitted for a non-propensity purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. It is not admissible merely to show that the person has a bad character or acted consistently with it.

2. What distinguishes habit evidence from inadmissible character evidence?

Show answer

Habit is a person’s regular, specific response to a particular situation, shown with enough frequency and particularity to be semi-automatic; it may be admitted to prove conduct on the occasion in question. General descriptions of personality or disposition are character evidence, not habit.

3. What is the general rule against character evidence offered to prove conduct?

Show answer

Under the majority/FRE rule, character evidence is generally inadmissible when offered solely to prove that a person acted in accordance with that character on a particular occasion. Criminal-case exceptions permit a defendant to offer a pertinent trait and allow the prosecution to rebut it, subject to the applicable victim- and defendant-character rules.

4. Under FRE 702, what are the five alternative sources of qualification for an expert witness, and what does 'proposition-specific' qualification mean?

Show answer

An expert witness may be qualified by knowledge, skill, experience, training, or education. 'Proposition-specific' means the witness's qualifications must directly relate to the particular testimony being offered, not just a general impressive credential.

5. Under Rule 703, what are the permissible bases for an expert's opinion, and when may inadmissible underlying facts be disclosed to the jury?

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An expert may base an opinion on facts or data they personally observed, were made aware of, or that experts in the field would reasonably rely on. If the underlying facts are inadmissible, they may be disclosed to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

6. Under Rule 702, what four requirements must the proponent of expert testimony demonstrate for reliability, and by what standard of proof?

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The proponent must demonstrate, by a preponderance of the evidence, that: 1) the expert’s specialized knowledge will help the trier of fact; 2) the opinion is based on sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert reliably applied those principles and methods to the facts of the case.

7. What are the 'Three Fast Calls' for evidence admissibility, and which rules do they invoke?

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The 'Three Fast Calls' are: 1) Probability (Rule 401 relevance, including conditional relevance under Rule 104(b)), 2) Prejudice (Rule 403 balancing, especially regarding unfair prejudice), and 3) Trial Cost (Rule 403 balancing, considering confusion, undue delay, or needlessly cumulative evidence).

8. What are the three requirements for admissible lay opinion testimony under FRE 701?

Show answer

The opinion must be rationally based on the witness’s perception, helpful to understanding the testimony or determining a fact in issue, and not based on specialized knowledge within the scope of expert testimony. The witness must therefore be using ordinary observations rather than technical or scientific expertise.

9. What makes evidence relevant under the Federal Rules of Evidence?

Show answer

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact must be consequential to determining the action. Relevant evidence is generally admissible unless the Constitution, a statute, another rule, or Rule 403 provides otherwise.

Character evidence, other acts, and habit

Character evidence, other acts, and habit

On this page

Acts With a Different Job: Rule 404(b) and Nonpropensity Uses

Character as Conduct Proof: The Rule 404(a) Gate

Proof Form and Repeated Conduct: Rules 405 and 406

Three Fast Rulings: Character, Other Acts, and Habit

High-Yield Points - ⚡ Biggest Takeaways

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Practice Questions: Character evidence, other acts, and habit

Flashcards: Character evidence, other acts, and habit

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