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.



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



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



 



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.



  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.



  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.



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



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



  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.



  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.



  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.



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



  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.



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



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



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



  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.



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



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  Where defendant's actions in incident at apartment clearly
constituted res gestae evidence linked to the crimes charged and were not
wholly independent or irrelevant to defendant's subsequent unprovoked assault
on two men, it was evidence that was necessary to complete the story for the
jury and constituted a res gestae exception to subsection (b).  114 H. 151
(App.), 157 P.3d 590.



  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.



  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.



  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.



  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.



  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.