Section 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally. Evidence of a persons 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 the Accused. In a criminal proceeding, the accused may offer evidence of a pertinent trait in reputation form only, and the prosecution may rebut the same.
(2) Character of the Victim. In a criminal proceeding, in support of a claim of self-defense,
(A) the accused may offer evidence known to the accused prior to the incident in question of the victims reputation for violence, of specific instances of the victims violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the accused;
(B) where the identity of the first aggressor or the first to use deadly force is in dispute, the accused may offer evidence of specific incidents of violence allegedly initiated by the victim, or a third party acting in concert with or to assist the victim, whether known or unknown to the accused, and the prosecution may rebut the same with specific incidents of violence by the defendant.
(3) Character of the Witness. Evidence of the character of a witness for truthfulness or untruthfulness, as provided in Sections 607, 608, and 609.
(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 for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident.
NOTE
Subsection (a). This subsection is derived from Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433, 441 (1986), and Commonwealth v. Bonds, 445 Mass. 821, 829, 840 N.E.2d 939, 946 (2006). Massachusetts follows the universally recognized rule against “propensity” evidence, i.e., evidence of a person’s character through reputation or specific acts (see Section 404[b]) offered to suggest that the person acted in conformity with that character or trait on the occasion in question is inadmissible. See Maillet v. ATF-Davidson Co., 407 Mass. 185, 187–188, 552 N.E.2d 95, 97 (1990); Commonwealth v. Doherty, 23 Mass. App. Ct. 633, 636–637, 504 N.E.2d 681, 683–684 (1987). In Figueiredo v. Hamill, 385 Mass. 1003, 1003–1005, 431 N.E.2d 231, 232 (1982), for example, the Supreme Judicial Court explained the difference between evidence of habit (a regular way of doing things) and evidence of character (a general description of one’s disposition), and held that evidence offered by the defendant that the decedent acted in a “habitually reckless manner” was inadmissible evidence of the decedent’s character. The prosecution may not offer in its case-in-chief evidence that the accused is a violent or dishonest person in order to demonstrate that the accused has a propensity to commit the crime charged. Commonwealth v. Mullane, 445 Mass. 702, 708–709, 840 N.E.2d 484, 492–493 (2006). But see Commonwealth v. Adjutant, 443 Mass. 649, 664, 824 N.E.2d 1, 13 (2005), discussed in the notes to Section 404(a)(2)(B). As Justice Cardozo stated, “the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime.” People v. Zackowitz, 254 N.Y. 192, 197, 172 N.E. 466, 468 (1930).
While Section 404(a) applies in both civil and criminal cases, exceptions (1) and (2) apply only in criminal cases. Exception (3) applies in both civil and criminal cases.
Subsection (a)(1). This subsection is derived from Commonwealth v. Nagle, 157 Mass. 554, 554555, 32 N.E. 861, 861862 (1893), and Commonwealth v. Brown, 411 Mass. 115, 117118, 579 N.E.2d 153, 155 (1991). According to long-standing practice, the accused may introduce evidence of his or her own good characterin reputation form onlyto show that he or she is not the type of person to commit the crime charged. See Commonwealth v. Belton, 352 Mass. 263, 267269, 225 N.E.2d 53, 5557 (1967). The accused is limited to introducing reputation evidence of traits that are involved in the charged crime. Commonwealth v. Beal, 314 Mass. 210, 229230, 50 N.E.2d 14, 25 (1943).
The prosecution has the right to cross-examine for impeachment purposes the defendants character witnesses on matters that are inconsistent with the character trait to which the witness has testified, including specific instances of bad conduct or criminal activity. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 53, 904 N.E.2d 442, 446 (2009) (When, in a prosecution for assault and battery, the defendant testified to his character for peacefulness, the trial judge did not abuse her discretion by ruling that the Commonwealth was entitled to cross-examine the defendant based on his prior convictions for the same offenses involving the same victim to rebut his credibility as to his character, even though the Commonwealth’s motion in limine to use these prior convictions for impeachment purposes had been denied prior to trial.). See also Section 405(a), Methods of Proving Character: Reputation. The prosecution may also present rebuttal evidence of the defendants bad character in reputation form. Commonwealth v. Maddocks, 207 Mass. 152, 157, 93 N.E. 253, 253254 (1910).
Subsection (a)(2)(A). This subsection is derived from Commonwealth v. Sok, 439 Mass. 428, 434435, 788 N.E.2d 941, 947948 (2003), and Commonwealth v. Fontes, 396 Mass. 733, 735736, 488 N.E.2d 760, 762763 (1986). The evidence may be offered to prove the defendants state of mind and the reasonableness of his or her actions in claiming to have acted in self-defense so long as the defendant knew about it prior to the incident in question. See Commonwealth v. Edmonds, 365 Mass. 496, 502, 313 N.E.2d 429, 432433 (1974).
Subsection (a)(2)(B). This subsection is derived from Commonwealth v. Adjutant, 443 Mass. 649, 664, 824 N.E.2d 1, 13 (2005); Commonwealth v. Pring-Wilson, 448 Mass. 718, 737, 863 N.E.2d 936, 950 (2007); and Commonwealth v. Chambers, 465 Mass. 520, 529–530, 989 N.E.2d 483, 490–491 (2013). Where a claim of self-defense is asserted and the identity of the first aggressor is in dispute, trial courts have discretion to admit a defendants evidence of specific incidents of violence allegedly initiated by the victim even if unknown to the defendant. Commonwealth v. Adjutant, 443 Mass. at 664, 824 N.E.2d at 13. The Adjutant rule does not permit evidence of the victims participation in athletic activities such as boxing or martial arts on the issue of whether the victim was the first aggressor, although such activities may, if known to the defendant, be relevant to a claim of self-defense based on the defendants reasonable fear of the victim. Commonwealth v. Amaral, 78 Mass. App. Ct. 557, 559, 940 N.E.2d 1242, 1244 (2011). If known to the defendant, the specific act evidence goes to the defendants state of mind, Commonwealth v. Simpson, 434 Mass. 570, 577, 750 N.E.2d 977, 987 (2001); if the defendant was not aware of the violent acts of the victim, the evidence goes merely to the propensity of the victim to attack. Commonwealth v. Adjutant, 443 Mass. at 661662, 824 N.E.2d at 12. See generally id. at 665, 824 N.E.2d at 14 (courts favor the admission of concrete and relevant evidence of specific acts over more general evidence of the victims reputation for violence). The rule announced in Commonwealth v. Adjutant is a “new common-law rule of evidence” to be applied prospectively only. Id. at 667, 824 N.E.2d at 15. See also Commonwealth v. Clemente, 452 Mass. 295, 304–305, 893 N.E.2d 19, 31–32 (2008) (declining to apply the Adjutant rule retrospectively).
If the defendant introduces evidence of specific instances of the victim’s violent conduct to help establish the identity of the first aggressor, the prosecution may rebut by introducing evidence of the victims propensity for peacefulness. Commonwealth v. Adjutant, 443 Mass. at 666 n.19, 824 N.E.2d at 14 n.19. See Commonwealth v. Lapointe, 402 Mass. 321, 325, 522 N.E.2d 937, 939940 (1988). The Commonwealth is also permitted to rebut such evidence by introducing specific instances of the defendant’s prior violent acts. Commonwealth v. Morales, 464 Mass. 302, 310–311, 982 N.E.2d 1105, 1111 (2013). In such cases, as in traditional Adjutant-type cases, the judge must exercise discretion and determine whether the probative value of the proposed testimony about who was the first to use deadly force is substantially outweighed by its prejudicial effect. Commonwealth v. Chambers, 465 Mass. 520, 531, 989 N.E.2d 483, 491 (2013).
Cross-Reference: Section 412, Past Sexual Conduct and Alleged Sexual Reputation (Rape-Shield Law).
Subsection (a)(3). This subsection is derived from Commonwealth v. Daley, 439 Mass. 558, 563, 789 N.E.2d 1070, 1075 (2003). See Notes to Sections 607, Who May Impeach, 608, Impeachment by Evidence of Character and Conduct of Witness, and 609, Impeachment by Evidence of Conviction of Crime.
Subsection (b). This subsection is derived from Commonwealth v. Helfant, 398 Mass. 214, 224225, 496 N.E.2d 433, 441 (1986), and G. L. c. 233, 23F. [W]hile evidence of other . . . wrongful behavior may not be admitted to prove the character or propensity of the accused as enhancing the probability that he committed the offence[,] . . . it is admissible for other relevant probative purposes. Commonwealth v. Tobin, 392 Mass. 604, 613, 467 N.E.2d 826, 833 (1984), quoting Commonwealth v. Chalifoux, 362 Mass. 811, 815816, 291 N.E.2d 635, 638 (1973). Thus, the prosecution may not offer proof of the defendants other bank robberies to paint the defendant as a bank robber or criminal type; but if the modus operandi of a prior bank robbery functions as an identifying feature because it is so distinctive as to be like a signature, it may be admitted to connect the defendant to the bank robbery which shares the same modus operandi. See Commonwealth v. Jackson, 428 Mass. 455, 459460, 702 N.E.2d 1158, 1162 (1998). See also Commonwealth v. Akara, 465 Mass. 245, 267, 988 N.E.2d 430, 448–449 (2013) (use of gang affiliation for nonpropensity purposes); Commonwealth v. O’Laughlin, 446 Mass. 188, 208209, 843 N.E.2d 617, 633 (2006) (motive); Commonwealth v. Mullane, 445 Mass. 702, 708710, 840 N.E.2d 484, 492494 (2006) (knowledge); Commonwealth v. Walker, 442 Mass. 185, 201203, 812 N.E.2d 262, 276277 (2004) (plan, common scheme, or course of conduct); Commonwealth v. Mendes, 441 Mass. 459, 466, 806 N.E.2d 393, 402 (2004) (motive); Commonwealth v. Sullivan, 436 Mass. 799, 809, 768 N.E.2d 529, 537 (2002) (intent); Commonwealth v. Leonard, 428 Mass. 782, 787788, 705 N.E.2d 247, 251 (1999) (identity/modus operandi); Commonwealth v. Cordle, 404 Mass. 733, 744, 537 N.E.2d 130, 137 (1989) (knowledge and motive); Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686687, 797 N.E.2d 470, 476477 (2003) (nature of relationship). Additionally, the prosecution is entitled to present as full a picture as possible of the events surrounding the incident itself, as long as the probative value of the evidence presented is not substantially outweighed by any prejudice to the defendant (quotation omitted). Commonwealth v. Robidoux, 450 Mass. 144, 158, 877 N.E.2d 232, 245 (2007). When a defendant is charged with sexual assault, evidence of prior, similar sexual misconduct between the defendant and the victim, if not too remote in time, is admissible to prove the defendants inclination to commit the acts charged and to show the relationship between the parties. See Commonwealth v. Barrett, 418 Mass. 788, 794795, 641 N.E.2d 1302, 1307 (1994); Commonwealth v. Morris, 82 Mass. App. Ct. 427, 440441, 974 N.E.2d 1152, 11641165 (2012). See also Dahms v. Cognex Corp., 455 Mass. 190, 201, 914 N.E.2d 872, 882 (2009) (trial judge did not err when, after careful consideration, he admitted evidence of female employee’s clothing, speech, and conduct, which was admissible in the context of a sexually hostile work environment and not barred as irrelevant character and propensity evidence).
Evidence of prior crimes or bad acts is not admissible unless, as a matter of conditional relevancesee Section 104(b), Preliminary Questions: Relevancy Conditioned on Factthe judge is satisfied that a reasonable jury could find that the event took place. Commonwealth v. Leonard, 428 Mass. at 785786, 705 N.E.2d at 250. The probative value of the evidence must not be (substantially) outweighed by a risk of undue prejudice. See Commonwealth v. Bonds, 445 Mass. 821, 834, 840 N.E.2d 939, 950 (2006) (substantially outweighed by its prejudicial effect); Commonwealth v. Martin, 442 Mass. 1002, 1002, 809 N.E.2d 536, 537 (2004) (probative value outweighs undue prejudice). See also Section 403, Grounds for Excluding Relevant Evidence. The evidence must be probative of a subsidiary fact at issue and not be too remote in time. Commonwealth v. Butler, 445 Mass. 568, 574, 839 N.E.2d 307, 312 (2005); Commonwealth v. Trapp, 396 Mass. 202, 206207, 485 N.E.2d 162, 165 (1985).
The prohibition against propensity evidence in specific act form stems from the belief that not only does such evidence have low probative value and carry the distinct risk of undue prejudice, it will also inevitably lead to proliferation of issues and distract the attention of the fact finder from the main event. See Commonwealth v. Clifford, 374 Mass. 293, 298, 372 N.E.2d 1267, 1271 (1978). See also Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010). As the Appeals Court has observed, all cases where prior bad acts are offered invite consideration of the potency of this type of evidence, the risk that it may be misused, and the importance, in jury trials, of delivering careful limiting instructions. Commonwealth v. Gollman, 51 Mass. App. Ct. 839, 845, 748 N.E.2d 1039, 1044 (2001), rev’d on other grounds, 436 Mass. 111, 113115, 762 N.E.2d 847, 850851 (2002) (extensive discussion). See generally Peter W. Agnes, Jr., Guided Discretion in Massachusetts Evidence Law: Standards for the Admissibility of Prior Bad Acts Against the Defendant, 13 Suffolk J. Trial & App. Advoc. 1 (2008).
Cross-Reference: Section 105, Limited Admissibility; Section 403, Grounds for Excluding Relevant Evidence; Section 405, Methods of Proving Character; Section 406, Routine Practice of Business; Individual Habit; Section 611(b)(2), Manner and Order of Interrogation and Presentation: Scope of Cross-Examination: Bias and Prejudice.
