Legal Memorandum: Character Evidence, Crimes or Other Acts

Issue: Under the federal rules, may testimony concerning the alleged clumsiness, ‘accident proneness’ or excessive use of alcohol of a plaintiff injured in an industrial accident be excluded from evidence in a product liability action?

           Rule 404 of the Federal Rules of Evidence provides that “[e]vidence of a person’s character or a trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except” in certain circumstances not pertinent here.  Fed. R. Evid. 404(a).  Rule 404 further provides that evidence of other acts or wrongs is “not admissible to prove the character of a person in order to show action in conformity therewith.”  Fed. R. Evid. 404(b).  As stated in all the treatises, testimony of a person’s character offered to prove that he behaved in accordance with that character is not admissible.  See McCormick on Evidence § 188; IA Wigmore on Evidence § 65; 2 Weinstein’s Federal Evidence § 404.10[1] (2000 ed.); Graham, Modern State and Federal Evidence: A Comprehensive Reference Text 512-20 (1989).  Thus, testimony that a party was a careful and cautious person is not admissible to prove that he was careful and cautious at the time of a particular accident, nor is testimony admissible of prior acts of negligence or of a reputation for recklessness. IA Wigmore, supra, § 65 n.3, at p.1422; McCormick, supra, § 189 nn.7-9 (collecting cases); 2 Weinstein, supra, § 404.11[1] n.4.  

In Reyes v. Missouri  Pac. R.R., 589 F. 2d 791 (5th Cir. 1979), the plaintiff sued after being run over by a train while lying on the tracks. He claimed that some unknown assailant had knocked him out, left him unconscious on the tracks and that the […]