Miss. R. Evid. 404
Restyled eff. July 1, 2016.
Advisory Committee Note The language of Rule 404 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The term "alleged" has been inserted before references to "victim" in subdivision (a), in order to provide consistency with Rule 412. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 404(a)(2) has been clarified to state more explicitly that in a civil case evidence of a person's character is never admissible to prove that the person acted in conformity with the character trait. This is consistent with the original intent of the Rule, which was to prohibit the circumstantial use of character evidence in civil cases, even where closely related to criminal charges. See Ginter v. Northwestern Mut. Life Ins. Co., 576 F. Supp. 627, 629-30 (D. Ky. 1984) ("It seems beyond peradventure of doubt that the drafters of F.R.Evi. 404(a) explicitly intended that all character evidence, except where 'character is at issue' was to be excluded" in civil cases.). This is in accord with the only Mississippi case to discuss the subject, Walker v. Benz, 914 So. 2d 1262 (Miss. Ct. App. 2005), which concluded that the defendant's character evidence would not be admissible under 404(a)(2) even if it applied by analogy in a civil assault case. Nothing in the amendments to Rule 404(a) affect the scope of 404(b). The admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases. (a) Character evidence may arise in three different ways: (1) when character is an issue in a case; (2) when the character of a witness is impugned for lack of veracity; and (3) when the character of a party is being used as the basis for an inference that he behaved in the instant case as he did on prior occasions. Character is straightforwardly introduced into evidence when it is a direct issue in the case. A defamation case exemplifies when character is a direct issue. New Orleans Great Northern R. v. Frazer, 158 Miss. 407, 130 So. 493 (1930). With regard to character evidence relating to the veracity of witnesses, Rule 404 refers one to Rules 607, 608, and 609. The difficulty surrounding character evidence is with regard to its inferential use. When a party attempts to prove that a person has a certain character trait and that he acted in accordance with it, the court will exclude the testimony. To do otherwise is to prejudice the person, to render him in the eyes of jurors liable, not because of what he did or did not do in the instant case, but because of what he has done or failed to do in the past. Floyd v. State, 166 Miss. 15, 148 So. 226 (1933); Eubanks v. State, 419 So.2d 1330 (Miss. 1972); Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965). This particular kind of circumstantial evidence most often appears in criminal cases. The general rule serves as a bar to the introduction of the inferential evidence. U.S. v. Cochran, 546 F.2d 27 (5th Cir. 1977); Davis v. State, 431 So.2d 468 (Miss. 1983). Ordinarily a victim's character is irrelevant. The fact that a "bad" man rather than a "good" man was murdered or beaten is inconsequential. Spivey v. State, 58 Miss. 858 (1881). Under specific circumstances, however, the character of a victim may be relevant. This would most likely arise in instances where the defendant claims that the victim was the initial aggressor and that the defendant's actions were in the nature of self-defense. In order to prove this the defendant must offer evidence of an overt act perpetrated against him by the victim. Freeman v. State, 204 So.2d 842 (Miss. 1967). Having proved the act, the defendant may then offer proof of the victim's character. Shinall v. State, 199 So.2d 251 (Miss. 1967), cert. denied 389 U.S. 1014 [88 S. Ct. 590, 19 L.Ed.2d 660] (1967), outlined the permissible exceptions which would still be applicable under this rule. The recognized exceptions are: "(A) when, from the circumstances of the case, it is a part of the res gestae; . . . (B) where the evidence of the homicide is wholly circumstantial . . .; (C) where it is doubtful as to who the aggressor was at the time of the homicide . . .; or (D) where the immediate circumstances of the killing render it doubtful as to whether or not the act was justifiable." (b) Against the general prohibition of producing evidence of prior offenses or actions to show that the party acted in conformity with past behavior, is posited a list of exceptions. These past acts introduced into evidence may be ones for which the person in question was either convicted or not convicted. All of the exceptions in Rule 404(b) have been recognized and applied on numerous occasions by the Mississippi Supreme Court. Evidence of another crime, for instance, is admissible where the offense in the instant case and in the past offense are so inter-connected as to be considered part of the same transaction. Neal v. State, 451 So.2d 743 (Miss. 1984). The court has consistently recognized that evidence of a prior crime or act may be admitted to show identity, knowledge, intent, or motive. Carter v. State, 450 So.2d 67 (Miss. 1984). It should be noted that the exceptions listed in Subsection (b) are not exclusive. ["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.] .