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).
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.
