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 a person's character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

     (1)  Character of accused.  Evidence of a pertinent trait of character of an accused offered by an accused, or by the prosecution to rebut the same;

     (2)  Character of victim.  Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

     (3)  Character of witness.  Evidence of the character of a witness, as provided in rules 607, 608, 609, and 609.1.

     (b)  Other crimes, wrongs, or acts.  Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.  In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial. [L 1980, c 164, pt of §1; am L 1994, c 25, §1]

 

RULE 404 COMMENTARY

 

  This rule closely resembles Fed. R. Evid. 404.  It operates to exclude generally evidence of a person's character "for the purpose of proving that he acted in conformity therewith on a particular occasion."  The exclusion represents a particularized application of the principle of Rule 403 supra.  As the Advisory Committee's Note to Fed. R. Evid. 404 puts it:  "Character evidence is of slight probative value and may be very prejudicial.  It tends to distract the trier of fact from the main question of what actually happened on the particular occasion.  It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened."

  This rule does not deal with the situation where the character of a person is itself an element of a claim or defense.  An example is Wilson v. Wilson, 128 Mont. 511, 278 P.2d 219 (1954), where the moral character of a parent in a child custody proceeding was determinative of the question of custody.  As the Advisory Committee's Note to Fed. R. Evid. 404 explains, in such a case "no problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject."  Rule 405 infra, provides the procedure for proving character in all cases, including the exceptions to Rule 404(a), where this kind of evidence is admissible.

  Subsection (a):  This subsection expresses the general rule of exclusion of character evidence when offered circumstantially to prove likelihood of particular conduct on a particular occasion.  Consistent with the common law approach, there are three classes of exceptions.

  The accused in a criminal case may offer evidence of a trait of good character pertinent to the issues in the case, State v. Faafiti, 54 H. 637, 513 P.2d 697 (1973).  Examples would be character for peacefulness and non-violence in an assault case and character for honesty in a theft prosecution.  In addition, the accused may offer evidence of a relevant character trait of the crime victim.

  As examples of situations where victims' character traits would be admissible under subsection (a)(2), the Advisory Committee's Note to Fed. R. Evid. 404 lists homicide cases involving self-defense claims and rape cases involving consent defenses.  Rule 412, however, has been recently added to the federal rules (compare Rule 412 infra), and victim character evidence in all sexual assault cases is governed by it.  Subsection (a)(2) is therefore applicable mainly to homicide and assault cases.  In State v. Lui, 61 H. 328, 603 P.2d 151 (1979), the court observed:  "[A] defendant who claims self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or aggressive character either to demonstrate the reasonableness of his apprehension of immediate danger or to show that the decedent was the aggressor."  For the first purpose, noted the Lui court, there must be a foundation showing that the accused knew of the deceased's character "or of the specific acts of violence committed."  But such a foundation "is not required where the factual issue is to determine the aggressor."  The evidence was properly excluded in Lui because, since the defendant shot the unarmed victim at a distance of ten feet, there was simply no "factual dispute as to who was the aggressor."

  After a character attack on the victim by the accused, or after any defense evidence that the victim "was the first aggressor," subsection (a)(2) allows the prosecution to prove the peaceful character of the victim in rebuttal.  This is consistent with the result in State v. Clyde, 47 H. 345, 388 P.2d 846 (1964).

  Subsection (a)(3) excepts witnesses' character traits, which may be admissible on the issue of credibility under Rules 607, 608, 609, and 609.1.

  Subsection (b):  Just as general character is inadmissible to prove particular conduct under subsection (a), so is evidence of any specific instance of conduct ruled out here when the only relevance is in the two-step inference from "other" conduct to general character and then "to show that he acted in conformity therewith" on the occasion in question.  The reasons are marginal relevance and the counterbalancing factors listed in Rule 403.

  When offered for the specified purposes other than mere character and propensity, however, "other crimes, wrongs, or acts" evidence may be admissible provided the Rule 403 test is met.  The House Judiciary Committee Report accompanying the federal rules makes clear that the use of the word "may" in Fed. R. Evid. 404(b) was "not intended to confer any arbitrary discretion on the trial judge" but was rather designed to trigger the Rule 403 balance.  The specific items listed in the rule as possible relevant facts justifying admissibility are illustrative of the various situations in which common law courts have admitted this kind of evidence.  Rule 404(b) differs from Fed. R. Evid. 404(b) in that the latter does not list "modus operandi."

  The addition of "modus operandi" in the present rule is not a difference of substance because this category is actually a species of "identity" proof.  That is, the characteristics and methodology of the prior crime or act may be so strikingly similar to those of the crime or act being litigated as to support the inference that both were the handiwork of the very same person.  McCormick cautions, however:  "Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts.  The device used must be so unusual and distinctive as to be like a signature." McCormick §190.  McCormick also cautions against admission by "pigeonholing" rather than the careful exercise of discretion called for by this rule.

  This subsection generally restates existing Hawaii law, see State v. Apao, 59 H. 625, 586 P.2d 250 (1978); State v. Murphy, 59 H. 1, 575 P.2d 448 (1978); State v. Iaukea, 56 H. 343, 537 P.2d 724 (1975); State v. Hashimoto, 46 H. 183, 377 P.2d 728 (1962); State v. Yoshida, 45 H. 50, 361 P.2d 1032 (1961); Territory v. Caminos, 38 H. 628, 635 (1950).

 

RULE 404 SUPPLEMENTAL COMMENTARY

 

  The Act 25, Session Laws 1994 amendment added a notice provision to subsection (b).  Applicable only in criminal cases, the requirement of adversary notification "of the date, location, and general nature" of any evidence to be offered under subsection (b) is not conditioned upon motion or request.

 

Law Journals and Reviews

 

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271 (1992).

  The Search for the Truth:  Admitting Evidence of Prior Abuse in Cases of Domestic Violence.  20 UH L. Rev. 221 (1998).

  Familial Violence and the American Criminal Justice System.  20 UH L. Rev. 375 (1998).

  Chief Justice Moon's Criminal Past.  33 UH L. Rev. 755 (2011).

 

Case Notes

 

  Evidence of victim's criminal record may be admitted to corroborate defendant's self-defense claim.  66 H. 510, 666 P.2d 599 (1983).

  Evidence of prior escape convictions and life sentence admissible to rebut defense of necessity and to establish element of crime.  66 H. 613, 670 P.2d 1282 (1983).

  Defendant's spending spree indicated total disregard of victim's money and was probative that money had been obtained by robbery.  67 H. 231, 683 P.2d 1217 (1984).

  Admissibility in assault and battery case of character evidence and other wrongs or acts.  69 H. 8, 731 P.2d 149 (1986).

  Evidence of prior bad acts admissible to show who was the original aggressor.  69 H. 204, 738 P.2d 812 (1987).

  Use of the word "may" was not intended to confer an arbitrary discretion to the trial judge but was designed rather to trigger the Rule 403 balance; evidence of other crimes, wrongs, and acts; and expert testimony to accredit a witness, discussed.  69 H. 633, 756 P.2d 1033 (1988).

  Allowing evidence of defendant's prior act, attempting to wrest gun away from a police officer, was an abuse of discretion.  70 H. 509, 778 P.2d 704 (1989).

  Court was authorized to allow prosecution to introduce evidence of victim's peaceful nature where defense has offered evidence of self-defense.  71 H. 347, 791 P.2d 392 (1990).

  Evidence that defendant used a knife in a prior incident was inadmissible.  71 H. 466, 796 P.2d 80 (1990).

  Evidence of prior shooting incident admissible to show defendants were knowing participants in uncharged conspiracy to kill rival gang members or under 404(b) exceptions of intent, motive, or plan.  73 H. 23, 828 P.2d 1266 (1992).

  Unredacted tapes allegedly referring to defendant's propensity to purchase drugs were properly admitted to prove knowing possession under §712-1241(1)(a).  73 H. 179, 830 P.2d 492 (1992).

  Defendant's statements, as direct evidence of charged offense of terroristic threatening, did not constitute "other" crimes, wrongs, or acts.  75 H. 517, 865 P.2d 157 (1994).

  Court properly exercised discretion in admitting evidence that defendant's prior arguments with girlfriend would become "a little physical".  79 H. 468, 903 P.2d 1289 (1995).

  Admission of evidence of defendant's prior physical, verbal and emotional abuse of wife proper where relevant and more probative than prejudicial.  80 H. 172, 907 P.2d 758 (1995).

  Under subsection (b), where a victim recants allegations of abuse, evidence of prior incidents of violence between victim and defendant relevant to show context of relationship, where relationship was offered as possible explanation for victim's recantation.  83 H. 289, 926 P.2d 194 (1996).

  Testimony regarding any or all of the multiple acts of sexual abuse was "direct evidence of the charged offense" and did not implicate "other crimes, wrongs, or acts" with which subsection (b) is concerned.  84 H. 1, 928 P.2d 843 (1996).

  Officer's testimony regarding defendant's statements about defendant's prior involvement in and experience with prostitution properly admitted under subsection (b) as such involvement and experience were probative of another fact of consequence--they related to defendant's knowledge of prostitution and the prostitution business.  88 H. 19, 960 P.2d 1227 (1998).

  Trial court did not abuse discretion by excluding evidence that victim had previously been incarcerated where, absent any offer of proof as to victim's violent conduct while in prison, probative value of victim's imprisonment was questionable and outweighed by danger of undue prejudice that jurors might believe that victim was a bad person who "got what he deserved".  97 H. 206, 35 P.3d 233 (2001).

  Trial court erred in ruling that victim's past use of a handgun was not relevant, as victim's ownership and use of a handgun, and defendant's knowledge of victim's past conduct when under the influence of drugs, combined with the risk to life that victim posed, was relevant to the issue of defendant's reasonable apprehension on the morning in question.  97 H. 206, 35 P.3d 233 (2001).

  Trial court correctly determined that evidence of defendant's use and sale of illegal drugs and defendant's threat to "shoot" witness were relevant and did not abuse its discretion in determining that the probative value of these "other bad acts" were not substantially outweighed by the danger of unfair prejudice.  99 H. 390, 56 P.3d 692 (2002).

  Trial court did not err in admitting evidence of the twenty-four guns not used by defendant in shooting rampage and testimony of weapons specialist where the evidence was relevant to show that defendant could appreciate the wrongfulness of defendant's conduct based upon the complex decision-making involved in choosing a gun from defendant's arsenal and to show defendant's planning and carrying out of plan to kill defendant's co-workers.  100 H. 442, 60 P.3d 843 (2002).

  The use of "res gestae" as an independent basis for the admission of evidence should be abandoned in the wake of Hawaii's well-developed and long-standing rules of evidence; under the subsection (b) analysis, apartment incident evidence did not fall within the permissible purposes of subsection (b) to render the evidence relevant and admissible; thus, defendant's judgment of conviction and sentence vacated and remanded.  117 H. 53, 175 P.3d 709 (2008).

  Appeals court erred in affirming trial court's ruling that precluded defendant, under subsection (b), from cross-examining victim about victim's alleged marijuana use; defendant was not required to provide subsection (b) "reasonable notice" prior to cross-examining victim about whether victim used marijuana because defendant intended to show the jury that victim's perception and testimony about the incident were not credible; as there was a reasonable possibility that errors contributed to defendant's conviction, errors not harmless and convictions vacated.  118 H. 452, 193 P.3d 368 (2008).

  Trial court did not abuse its discretion by precluding subsection (b) evidence that abuse victim had previously "smacked" defendant where defendant did not establish good cause for delaying the notification of the subsection (b) evidence until the day of trial.  118 H. 452, 193 P.3d 368 (2008).

  Where, pursuant to subsection (b), defendant was required to give prosecution reasonable notice prior to introducing subsection (b) evidence, it did not violate defendant's constitutional right to present a defense and examine witnesses; subsection (b) is not per se unconstitutional even though it may restrict a defendant's constitutional right to confront an adverse witness and subsection (b)'s policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitation imposed on the defendant's constitutional right to testify.  118 H. 452, 193 P.3d 368 (2008).

  Trial court did not abuse its discretion in allowing into evidence the early morning incident between defendant and complainant and determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice where the incident was probative of defendant's motive in committing the offenses, and was relevant to complainant's state of mind and to whether complainant was subject to strong compulsion, had consented to the sexual intercourse, and was involuntarily restrained.  118 H. 493, 193 P.3d 409 (2008).

  Where evidence of the sexual contacts in South Dakota was probative of defendant's opportunity to commit the charged sexual assaults in Hawaii without being detected and (1) the strength of the evidence was essentially the same (2) the similarities between the crimes were strong (3) there was substantial need for the evidence as absent the evidence, the jury would have been left with the false impression that the sexual contact started in Hawaii (4) there was no alternative way to establish the progression of defendant's behaviors, and (5) the evidence was not likely to rouse hostility against defendant by the jury, evidence was properly admitted.  124 H. 90, 237 P.3d 1156 (2010).

  Prosecutor is not permitted to bypass the evidentiary rules by asking the jury to infer conduct that, if it had been introduced during the trial, would have been subject to the limitations of subsection (b).  132 H. 97, 319 P.3d 1105 (2014).

  Where defendant was accused of committing sexual assault in the fourth degree against the complaining witness, the circuit court should have excluded defendant's earlier statements that defendant wanted to "take" the complaining witness because the statements were, at their core, character evidence used to show action in conformity therewith and were not admissible under a subsection (b) exception.  132 H. 391, 322 P.3d 931 (2014).

  Evidence of prior forgery admitted to prove intent.  1 H. App. 49, 613 P.2d 908 (1980).

  Appellate review of trial court's exclusion of evidence under rule; reputation evidence cannot relate to time after offense committed.  5 H. App. 251, 687 P.2d 554 (1984).

  Exceptions (1) and (2) allow use of character evidence in criminal cases only.  6 H. App. 505, 729 P.2d 388 (1986).

  Where trial judge implicitly decided that State's need to prove victim's knowledge of defendant's connection to business of drug dealing and collecting moneys due for drug deals, etc. was not substantially outweighed by its possible prejudicial impact, to extent implicit decision was a finding of fact, it was not clearly erroneous; to extent it was an exercise of discretion, it was not an abuse.  9 H. App. 578, 855 P.2d 34 (1993).

  Trial court did not abuse its discretion in allowing witnesses to testify about defendants' involvement with child protective services, where evidence of defendants' involvement with child protective services was clearly probative of matters other than their propensity to commit the offense charged, and probative value of the evidence was not substantially outweighed by unfair prejudice to defendants.  10 H. App. 73, 861 P.2d 37 (1993).

  Trial court did not abuse its discretion in refusing to allow pastor to testify where offer of proof was that pastor would testify about how long pastor had known defendant and in what capacity defendant had been involved in pastor's church; testimony of defendant's good and peaceful character would be admissible.  77 H. 177 (App.), 880 P.2d 1224 (1994).

  Proffered testimony that defendant had a "habit" of speeding defendant's motorboat in marina and in channel over several days prior to accident constituted character evidence of prior bad acts which was inadmissible under subsection (b), and not habit evidence, which was admissible under rule 406.  77 H. 446 (App.), 887 P.2d 656 (1993).

  As evidence that defendant sold methamphetamine to finance defendant's cocaine use was probative of whether defendant had a motive to manufacture methamphetamine and an intent to do so, and defendant's cocaine use also demonstrated defendant's knowledge of the nature of illegal drugs, where court admitted evidence under subsection (b), any potential prejudice, confusion, or waste of time was not outweighed by the probative value of the evidence; thus, no abuse of discretion.  95 H. 365 (App.), 22 P.3d 1012 (2000).

  Where there is evidence to support a finding that the defendant was the aggressor and there is no evidence to support a finding that the other person was the aggressor, the defendant may not introduce evidence of the other person's violent or aggressive character.  97 H. 413 (App.), 38 P.3d 581 (2001).

  As absence of mistake is specifically listed as an exception under subsection (b), it was appropriate for State to offer evidence of ongoing department of health violations to show an absence of mistake under subsection (b) in order to negate defendant care home operator’s defense of mistake.  104 H. 387 (App.), 90 P.3d 1256 (2004).

  Trial court did not abuse discretion in permitting a deputy prosecuting attorney to testify about defendant's second driving while license suspended or revoked for driving under the influence conviction, as testimony was offered to prove defendant's reckless state of mind regarding whether defendant's license remained revoked or suspended for DUI-alcohol.  106 H. 123 (App.), 102 P.3d 367 (2004).

  Trial court did not err in excluding evidence of witness' alleged involvement in a gang where defendant failed to explain how witness' involvement in gang activity goes to the issue of truthfulness.  108 H. 102 (App.), 117 P.3d 834 (2005).

  Trial court did not err in permitting a witness' testimony about defendant's drug-related activities as testimony was not irrelevant or unduly prejudicial; a witness' testimony regarding defendant's drug-related activities was directly relevant to proving defendant's knowledge and intent with respect to the drugs found in the apartment, and defendant's trial strategy itself significantly diminished the risk that any unfair prejudice resulted from a witness' testimony regarding defendant's other drug activities.  114 H. 162 (App.), 158 P.3d 280 (2006).

  Evidence of improper comments made by defendant regarding minor and the incidents involving dyeing minor's hair and examining minor's testicles was admissible under subsection (b) where it was relevant to show defendant's motive, purpose, and intent when defendant joined minor in the bathroom that particular evening, and the nature of the prior statements and conduct by defendant was not highly inflammatory or otherwise unduly prejudicial so as to outweigh its probative value.  116 H. 125 (App.), 170 P.3d 861 (2007).

  Evidence regarding entire incident, including defendant's subsequent apprehension and possession of baseball bat, was probative of facts of consequence other than character and propensity--establishing modus operandi, identity and opportunity--and thus admissible under subsection (b); thus, trial court did not err in admitting this evidence, with one exception; however, because of the ambiguous nature of the excepted evidence, the court's written and oral instructions limiting the jury's consideration of the information, and the strength of the evidence against defendant, the error was harmless beyond a reasonable doubt.  116 H. 422 (App.), 173 P.3d 569 (2007).

  Trial court did not abuse its discretion in preventing defendant from questioning victim about victim's alleged past acts of violence until evidence raising  a factual issue as to whether victim was the first aggressor was introduced where evidence to support a finding that victim was the first aggressor had not yet been introduced when victim testified during the State's case in chief, such evidence was not introduced until defendant testified, and after defendant testified, defendant did not attempt to question victim about victim's alleged past acts of violence.  116 H. 445 (App.), 173 P.3d 592 (2007).

  Where defendant's possession of the drug paraphernalia was relevant to show defendant's motive for the charged burglary and robbery, which allegedly led to defendant's kidnapping and murder of victim, even if the drug paraphernalia charge had been severed from the other charges, evidence of defendant's possession of the drug paraphernalia would have been admissible in a trial of the other charges under subsection (b).  119 H. 74 (App.), 193 P.3d 1274 (2008).

  Where victim's prior abuse of defendant's girlfriend was circumstantial evidence of the likelihood that victim was the first aggressor in the events that led up to the shooting incident, trial court abused its discretion in precluding defendant from introducing evidence of victim's prior abuses of defendant's girlfriend under subsection (a)(2).  120 H. 420 (App.), 209 P.3d 1234 (2009).

  Although the limiting instruction was given four days after the jury had heard the evidence, where the jury needed to consider the prior convictions to rebut the impression created at trial that defendant was a peaceful person, the instruction was not prejudicially insufficient, erroneous, inconsistent, or misleading.  123 H. 456 (App.), 235 P.3d 1168 (2010).

  Primarily for reasons with regard to the time that had elapsed between the other bad acts and the charged crime and applying the test set out in HRE rule 403, the circuit court did not abuse its discretion in allowing the State to adduce at trial evidence of defendant's prior convictions under this rule.  123 H. 456 (App.), 235 P.3d 1168 (2010).

  Although the circuit court erred in its determination that defense counsel had opened the door to prior incidents, the error was harmless because that evidence was nevertheless admissible under subsection (b).  Specifically, the prior incidents were relevant to show intent and common plan, the prior incidents refuted the theory that defendant was forced to participate in the criminal activity, the probative value of the prior incidents outweighed the prejudicial effect, defendant was able to use the introduction of the prior incidents to support defendant's case, and the jury was given limiting instruction that dissipated the risk of prejudice.  133 H. 253, 327 P.3d 931 (2014).

  Circuit court did not err in admitting evidence of prior incident, where:  (1) the prior incident was relevant to showing the context of the current incident; (2) the prior incident assisted the jurors in assessing victim's credibility; and (3) the circuit court gave the jury a limiting instruction, which prohibited the jury from using evidence of the prior incident to determine defendant was a person of bad character.  134 H. 376 (App.), 341 P.3d 1176 (2014).

  Mentioned:  74 H. 54, 837 P.2d 1298 (1992).