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Rule 404.?Character Evidence; Crimes or Other Acts.

 

(a)   CharacterEvidence.

(a)(1)   Prohibited Uses. Evidence of a person?scharacter or character trait is not admissible to prove that on a particularoccasion the person acted in conformity with the character or trait.

 

(a)(2)   Exceptions for a Defendant or Victim in aCriminal Case. The following exceptions apply in a criminal case:

 ?????????????????????? (a)(2)(A)   a defendant may offer evidence of the defendant?s pertinenttrait, and if the evidence is admitted, the prosecutor may offer evidence torebut it;

 

(a)(2)(B)   subject to the limitations in Rule412, a defendant may offer evidence of an alleged victim?s pertinent trait,and if the evidence is admitted, the prosecutor may:

 ?????????????????????????????????? (a)(2)(B)(i)    offerevidence to rebut it; and

 

(a)(2)(B)(ii)   offer evidence of thedefendant?s same trait; and

 

(a)(2)(C)   in a homicide case, theprosecutor may offer evidence of the alleged victim?s trait of peacefulness torebut evidence that the victim was the first aggressor.

 

(a)(3)   Exceptions for a Witness. Evidence of a witness?scharacter may be admitted under Rules 607,608,and 609.

 

(b)    Crimes,Wrongs, or Other Acts.

(b)(1)   Prohibited Uses. Evidence of a crime, wrong,or other act is not admissible to prove a person?s character in order to showthat on a particular occasion the person acted in conformity with thecharacter.

 

(b)(2)   Permitted Uses; Notice in a CriminalCase. Thisevidence may be admissible for another purpose, such as proving motive,opportunity, intent, preparation, plan, knowledge, identity, absence ofmistake, or lack of accident. On request by a defendant in a criminal case, theprosecutor must:

 ?????????????????????? (b)(2)(A)   provide reasonable notice of the general nature of any suchevidence that the prosecutor intends to offer at trial; and

 

(b)(2)(B)   do so before trial, or duringtrial if the court excuses lack of pretrial notice on good cause shown.

 

(c)   Evidenceof Similar Crimes in Child-Molestation Cases.

(c)(1)   Permitted Uses. In a criminal case in whicha defendant is accused of child molestation, the court may admit evidence thatthe defendant committed any other acts of child molestation to prove apropensity to commit the crime charged.

 

(c)(2)   Disclosure. If the prosecution intendsto offer this evidence it shall provide reasonable notice in advance of trial,or during trial if the court excuses pretrial notice on good cause shown.

 

(c)(3)   For purposes of this rule ?child molestation? means an actcommitted in relation to a child under the age of 14 which would, if committedin this state, be a sexual offense or an attempt to commit a sexual offense.

 

(c)(4)   Rule404(c) does not limit the admissibility of evidence otherwise admissibleunder Rule 404(a), 404(b), or any other rule of evidence.

 

 

EffectiveApril 1, 2008 

 

 

2011Advisory Committee Note. ?The language of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intendedto be stylistic only. There is no intent to change any result in any ruling onevidence admissibility.

 

Original Advisory CommitteeNote.? Rule 404(a)-(b) is now Federal Rule of Evidence 404 verbatim. The2001 amendments add the notice provisions already in the federal rule, add theamendments made to the federal rule effective December 1, 2000, and deletelanguage added to the Utah Rule 404(b) in 1998. However, the deletion of thatlanguage is not intended to reinstate the holding of State v. Doporto, 935 P.2d 484 (Utah 1997). Evidence sought tobe admitted under Rule 404(b) must also conform withRules 402 and 403 to be admissible.

 

The 2008amendment adds Rule 404(c). It applies in criminal cases where the accused is charged with a sexual offense against a child under theage of 14. Before evidence may be admitted under Rule 404(c),the trial court should conduct a hearing out of the presence of the jury todetermine: (1) whether the accused committed other acts, which if committed in thisState would constitute a sexual offense or an attempt to commit a sexualoffense; (2) whether the evidence of other acts tends to provethe accused?s propensity to commit the crime charged; and (3) whetherunder Rule 403 the danger of unfair prejudice substantially outweighs theprobative value of the evidence, or whether for other reasons listed in Rule403 the evidence should not be admitted. The court should consider thefactors applicable as set forth in State v. Shickles,760 P.2d 291, 295-96 (Utah 1988), which also may be applicable indeterminations under Rule 404(b).

 

Upon therequest of a party, the court may be required to provide a limiting instructionfor evidence admitted under Rule 404(b) or (c).