Del. R. Evid. 404

As amended through December 15, 2023

Rule 404 - Character Evidence Crimes or Other 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) except as otherwise provided 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.

(b)Crimes, Wrongs, or Other Acts.

(1)Prohibited Uses. Evidence of a crime, wrong, or other 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; Notice in a Criminal Case. 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.

Del. R. Evid. 404

Amended November 28, 2017, effective 1/1/2018.

Comment

D.R.E. 404(a) tracks F.R.E. 404(a) except that the additional words "except as otherwise provided by statute" were added at the beginning of D.R.E. 404(a)(2)(B). These additional words were deemed necessary to make clear that D.R.E. 404(a)(2)(B) does not change the rule enacted by the Delaware General Assembly as 11 Del. C. §§3508 and 3509 (enacted by 60 Del. Laws, c. 257 §1, effective July 11, 1975) relating to the sexual conduct of the complaining witness in prosecutions for rape or rape related offenses.

D.R.E. 404(a)(1) was amended in 2001 to track F.R.E. 404(a)(1) in effect on December 31, 2000. Prior to the 2001 amendment, D.R.E. 404(a)(1) prohibited the use of evidence relating to the character of the accused to show a propensity to act unless the accused offered evidence of good character. In that case, the prosecution has always been allowed to offer evidence of bad character.

D.R.E. 404(a)(2)(B) enumerates a second situation in which the prosecution would be permitted to offer evidence of the character of the accused as reflecting on the accused's propensity to commit the charged act. Specifically, the 2001 amendment permits the prosecution to offer propensity evidence against the accused if the accused has offered evidence which was admitted under D.R.E. 404(a)(2) as to the propensity of an alleged victim to commit certain acts. Prior to the 2017 stylistic amendments, this provision was contained within D.R.E. 404(a)(1).

D.R.E. 404(b) tracks F.R.E. 404(b) in effect on December 31, 2000, except the provisions of F.R.E. 404(b) pertaining to pretrial notice of the prosecution's intent to introduce such evidence have been omitted. A party who intends to introduce evidence pursuant to D.R.E. 404(a) or 404(b) should first seek a ruling from the trial judge as to the admissibility of the evidence.

See D.R.E. 412 and 608(a)(2) relating to relevance of rape victim's past behavior.

For cases clarifying how D.R.E. 404(b) should be applied, see Renzi v. State, Del. Supr., 320 A.2d 711 (1974); Getz v. State, Del. Supr., 538 A.2d 726 (1988); DeShields v. State, Del. Supr., 706 A.2d 502 (1998).

D.R.E. 404 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 "Comment" to D.R.E. 404 was revised only as necessary to reflect the 2017 amendments. There is no intent to change any result in ruling on evidence admissibility.