Character & Other Acts Evidence — Florida and Federal Court

The Evidence Code · Topic Guide

§§ 90.404–90.406, Fla. Stat. · Fed. R. Evid. 404–406 · Phillips, Hunt & Walker

Prior bad acts are the most dangerous evidence a jury can hear. They are also, in some form, in almost every criminal case and quite a few civil ones. The rules that separate a legitimate proof-of-motive offer from a naked propensity attack are Rule 404 (both jurisdictions), the Williams rule in Florida, and the 2020 federal notice amendment. Miss the framework and you either lose evidence you should have gotten in, or you preserve error your opponent can win on appeal.

The propensity ban — the frame for everything else

Both jurisdictions start with the same rule: evidence of a person’s character or a specific prior act is not admissible to prove that on a particular occasion the person acted in accordance with that character or act. Read the rules: § 90.404, Fla. Stat. · Fed. R. Evid. 404.

Character in criminal cases — the “mercy rule”

In a criminal case, the defendant may offer evidence of a pertinent character trait; if admitted, the prosecutor may rebut. § 90.404(1)(a); FRE 404(a)(2)(A). This is the “mercy rule” — the defense gets to open the door, and once opened the door swings both ways.

Character of the victim

Both jurisdictions allow the criminal defendant to offer evidence of a pertinent trait of the alleged victim; on rebuttal the prosecutor may offer evidence of the same trait in the defendant. In a homicide case, the prosecutor may offer evidence of the victim’s peacefulness to rebut a claim that the victim was the first aggressor. § 90.404(1)(b); FRE 404(a)(2)(B)–(C). Victim-character evidence is also subject to the rape-shield restrictions in § 794.022 (Florida) and Rule 412 (federal) when the case involves alleged sexual misconduct.

Character of a witness

A witness’s character for truthfulness or untruthfulness is governed by the witness-impeachment rules — §§ 90.608–90.610, Fla. Stat. and FRE 607–609 — not by Rule 404.

The huge exception — “other acts” evidence (404(b) / Williams rule)

Federal: FRE 404(b) makes evidence of any other crime, wrong, or act inadmissible to prove propensity but admissible for another purpose — motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is the most litigated evidence rule in federal criminal practice.

Florida: The state’s version is known as the Williams rule after Williams v. State, 110 So. 2d 654 (Fla. 1959), and codified at § 90.404(2), Fla. Stat. Similar-fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue (including motive, opportunity, intent, plan, identity, absence of mistake or accident), but inadmissible when relevant only to prove bad character or propensity.

Two federal doctrinal anchors

Huddleston v. United States, 485 U.S. 681 (1988): the trial court need not itself find the prior act occurred by a preponderance of the evidence; it must decide only whether a jury could reasonably conclude the act occurred by a preponderance.
Old Chief v. United States, 519 U.S. 172 (1997): in a felon-in-possession case, the government must accept the defendant’s stipulation to the prior-conviction element rather than parading the underlying facts before the jury.

The 2020 federal notice amendment — 404(b)(3)

Effective December 1, 2020, FRE 404(b)(3) requires the prosecutor in a criminal case to:

provide reasonable notice of any 404(b) evidence to be offered at trial;
articulate in the notice the permitted purpose for which it is offered and the reasoning that supports the purpose; and
do so in writing before trial (or during trial for good cause).

The “articulate the purpose and the reasoning” language is the amendment’s teeth. A one-line notice reading “the government will offer evidence of prior transactions for motive” no longer complies.

Florida child-molestation similar-fact provision

Florida also has a special similar-fact rule for child-molestation cases at § 90.404(2)(b), Fla. Stat. — evidence of other acts of child molestation is admissible under a broader standard than the general Williams rule. The federal analog is Fed. R. Evid. 414. Adult sexual-assault propensity evidence has no direct Florida Evidence Code equivalent; the federal counterpart is Fed. R. Evid. 413.

Methods of proving character — Rule 405 / § 90.405

When character evidence is admissible, this rule controls how you prove it. Read: § 90.405, Fla. Stat. · Fed. R. Evid. 405.

Direct. Reputation or opinion testimony. You do not lead with a catalog of specific incidents.
Cross. The court may allow inquiry into relevant specific instances to test the character witness’s basis of knowledge.
Essential-element cases. When character is itself an essential element of a charge, claim, or defense, specific instances of conduct may be used on direct.

Habit and routine practice — Rule 406 / § 90.406

Habit is the flip side of the character ban. A regular, near-automatic response to a specific situation — or an organization’s routine practice — can be used to prove conforming conduct on a specific occasion, with no corroboration or eyewitness required. Read: § 90.406, Fla. Stat. · Fed. R. Evid. 406.

Practical points from the trial bar

Never offer prior acts to prove propensity — say the non-propensity purpose out loud. “For motive,” “for absence of mistake,” “for identity.”
Demand a limiting instruction whenever 404(b) evidence comes in against your client.
Under the 2020 notice amendment, hold the prosecutor to the exact stated purpose.
Rule 403 is the second gate. Even non-propensity purposes can lose to unfair prejudice.
Watch reverse-Williams offers. A defendant may offer similar-fact evidence of someone else’s prior acts to raise reasonable doubt.
Old Chief stipulations. In a federal felon-in-possession case, offer to stipulate to the prior-conviction element.