Character evidence not admissible to prove conduct; exceptions; other

crimes, wrongs, or acts. (a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) CHARACTER OF ACCUSED. In a criminal case, evidence of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2)(A)(i), evidence of the same trait of character of the accused offered by the prosecution; (2) CHARACTER OF VICTIM. (A) In Criminal Cases. (i) 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 (ii) 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. (B) In Civil Cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self-defense by a party accused of assaultive conduct, or evidence of the victim's character for peacefulness to rebut the same. Whenever evidence of character for violence of the victim of assaultive conduct, offered by a party accused of such assaultive conduct, is admitted on the issue of self-defense, evidence of character for violence of the party accused may be offered on the issue of self-defense by the victim and evidence of the accused party's character for peacefulness may be offered to rebut the same. (3) CHARACTER OF WITNESS. Evidence of the character of a witness, as provided in Rules 607, 608, 609, and 616. (b) Other crimes, wrongs, or acts. (1) Prohibited Uses. 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. (2) Permitted Uses. This evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (3) Notice in a Criminal Case. In a criminal case, the prosecutor must: (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial -- or in any form during trial if the court, for good cause, excuses lack of pretrial notice. [Amended 8-15-2013, eff. 10-1-2013; Amended 3-3-2023, eff 5-1-2023.] Advisory Committee’s Notes This rule undertakes to answer the basic question of when evidence of character may be admissible. Once character evidence is determined to be admissible under (a), one generally must consult Ala.R.Evid. 405 for the appropriate medium through which the character may be proven – i.e., reputation, opinion, or conduct. It is intended that Rule 404(b) will be applicable in civil as well as criminal cases. Section (a). Character evidence generally. Rule 404, like its federal counterpart, begins with what may be termed a “general exclusionary rule of character.” As a general rule, whether in civil or criminal cases, character evidence is not admissible when offered to prove that a person is of a particularly good or bad character and that the person acted in conformity with that character on the occasion that is the basis of the litigation. This exclusionary rule has been long recognized in Alabama case law. See C. Gamble, Character Evidence: A Comprehensive Approach 3 (1987). In a criminal case, for example, the prosecution may not take the initiative to prove the accused’s bad character as a basis for the jury to infer that the accused committed the now-charged crime. Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Ex parte Killough, 438 So.2d 333 (Ala.1983); C. Gamble, McElroy’s Alabama Evidence § 27.02(1) (4th ed. 1991). Likewise, a party to a civil action may not prove an opponent’s bad character for negligence as a basis for the factfinder to infer that the opponent was negligent on the occasion that serves as the basis of the cause of action. Smith v. Civil Service Bd. of the City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974); Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970). Subsection (a)(1). Character of accused. The criminally accused is provided special dispensation from the general exclusionary rule regarding character. Under the power historically granted by a principle that has come to be termed the “mercy rule,” the criminal defense may prove the accused’s good character. The accused’s evidence of good character may serve as circumstantial proof that the accused did not commit the crime charged. Michelson v. United States, 335 U.S. 469, 479 (1948). This right of the defense to prove the accused’s good character, as evidence of innocence, has long existed under Alabama law. See, e.g., Beaird v. State, 215 Ala. 27, 109 So. 161 (1926); Felix v. State, 18 Ala. 720 (1851). See also C. Gamble, Character Evidence: A Comprehensive Approach 48 (1987). The mediums of proof through which the accused may evidence good character remain unchanged. The criminal defendant will continue to be permitted to prove good character through general reputation as a whole. Elmore v. State, 216 Ala. 247, 113 So. 33 (1927); C. Gamble, McElroy’s Alabama Evidence § 27.01(2) (4th ed. 1991). Contra Fed.R.Evid. 404(a)(1). The defense, of course, may limit reputation testimony to a trait that is pertinent to the crime charged. However, this is not required. Unlike the corresponding Federal Rule of Evidence, this rule does not permit a character witness to give an opinion of the accused’s character. The character witness may testify as to reputation only. Jones v. State, 53 Ala.App. 690, 304 So.2d 34, cert. denied, 293 Ala. 261, 304 So.2d 38 (1974). See C. Gamble, McElroy’s Alabama Evidence § 27.01(1) (4th ed. 1991). If the criminal defense chooses to prove the accused’s good character through one of the permissible mediums, the prosecution may rebut with evidence of bad character. That right of rebuttal has received historic recognition under Alabama evidence law. Bedsole v. State, 274 Ala. 603, 150 So.2d 696 (1963); Pierce v. State, 228 Ala. 545, 154 So. 526 (1934). The rebuttal evidence, like the accused’s evidence of good character, must be offered through the medium of reputation. Because the mercy rule is a right of special dispensation afforded the criminal defendant, the defendant is allowed some measure of power to limit the breadth of the rebuttal. When the defense offers proof of the accused’s reputation for a particular trait, for example, the rebuttal testimony should be confined to the same trait or to a similar one. Thorn v. State, 450 So.2d 179 (Ala.Crim.App.1984); Martin v. State, 90 Ala. 602, 8 So. 858 (1891), overruled by Williams v. State, 140 Ala. 10, 37 So. 228 (1903). It should be noted that the accused does not open the door for the prosecution to offer evidence of bad character, as set forth in Rules 404(a)(1) and 405(a), by taking the witness stand in his or her own behalf. Such testimony by the accused, however, would subject the accused to impeachment. Ala.R.Evid. 404(a)(3). Subsection (a)(2). Character of victim. This subsection, as does its counterpart under the Federal Rules of Evidence, permits evidence of a victim’s character. It provides another exception to the Rule 404(a) exclusion under which evidence of a person’s character is generally excluded when offered to prove that the person acted in conformity therewith on a particular occasion. As to a victim of rape or assault with intent to rape, it is important to note that any Rule 404(a)(2) principles are preempted by contrary provisions found in the “rape shield” principle of