Maine Restyling Note [November 2014]
Maine Rule 404 differs in some respects from its federal counterpart. The Maine Rule does not include any exception for evidence of the character of a victim in a criminal case, or permitting the prosecution to use evidence of the defendant’s character to rebut it. The Maine Rule also does not spell out the grounds for limited admissibility of evidence of other wrongs under Rule 404(b). This does not mean that such evidence is not admissible for limited “non-character” purposes. However, the Maine Rule does not list some permissible non-character uses lest it be inferred that these are the only non-character purposes for which the evidence may be admitted. These differences have been maintained in the restyled Rule.
Federal 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. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Advisers’ Note to former M.R. Evid. 404
(February 2, 1976)
This rule deals with the use of character evidence for the purpose of proving that a person acted in conformity with it on a particular occasion. The separate question of the method of proof, once it is established that character evidence in some form is admissible, is dealt with in Rule 405, and if the character is that of a witness in Rules 608 to 610.
Subdivision (a) states the general rule that character evidence is not admissible for this purpose. This has been Maine law since Potter v. Webb, 6 Me. 14 (1829), in civil cases. It is equally clear that the state in a criminal action cannot introduce initially evidence of the bad character of the accused. State v. Tozier, 49 Me. 404 (1862). This rule is not based on lack of relevancy but rather because the danger of prejudice (“he’s a bad man, so he is probably guilty”) outweighs the probative value.
Exception (1)31 applies only to criminal cases. An accused is allowed to produce evidence of his good character, but the state may then rebut it. State v. Tozier, supra. 31 This exception is now at (a)(2).
Exception (2)32 simply refers to Rules 607 to 609, which deal with evidence of the character of a witness to impeach his credibility.
The rule does not include an exception allowing an accused to offer evidence of a pertinent trait of the character of the victim of a crime as proof that he acted in conformity therewith on the occasion in question. Examples would be character evidence to support a claim of self-defense to a homicide charge or consent in a case of rape. The Federal Rule allows such evidence, but it is omitted from this rule because it has slight probative value and is likely to be highly prejudicial, so as to divert attention from what actually occurred. Absence of this exception may change Maine law; it is unclear. It should be noted that this rule does not keep out the victim’s reputation for violence, proved to have been known to the accused before the event, for the purpose of showing his reasonable apprehension of immediate danger.
Subdivision (b) deals with evidence of other crimes, wrongs, or acts. Such evidence is not admissible to prove character in order to show that a person acted in conformity therewith. The subdivision does not exclude the evidence when offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Maine law is in accord. State v. Aubut, 261 A.2d 48 (Me. 1970) (evidence of attempt to utter forged instrument of same tenor on same day admissible to show knowledge of forgery); State v. Wyman, 270 A.2d 460 (Me. 1970) (evidence of other crime of precisely similar nature admissible to show intent; jury must be carefully instructed as to limited purpose).
