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Rule404. Character Evidence; Crimes or Other Acts


(a)   CharacterEvidence.


(1)   Prohibited Uses. Evidence of a personís character orcharacter trait is not admissible to prove that on a particular occasion the personacted in conformity with the character or trait.


(2)   Exceptions for a Defendant or Victimin a Criminal Case. Thefollowing exceptions apply in a criminal case:


(A)   a defendant may offer evidence of the defendantíspertinent trait, and if the evidence is admitted, the prosecutor may offerevidence to rebut it;


(B)   subject to the limitations in Rule 412, a defendant mayoffer evidence of an alleged victimís pertinent trait, and if the evidence isadmitted, the prosecutor may:


(i)    offer evidence to rebut it; and


(ii)   offer evidence of the defendantís sametrait; and


(C)   in a homicide case, the prosecutor may offer evidence ofthe alleged victimís trait of peacefulness to rebut evidence that the victimwas the first aggressor.


(3)   Exceptions for a Witness. Evidence of a witnessís character maybe admitted under Rules 607, 608, and 609.


(b)    Crimes,Wrongs, or Other Acts.


(1)   Prohibited Uses. Evidence of a crime, wrong, or otheract is not admissible to prove a personís character in order to show that on aparticular occasion the person acted in conformity with the character.


(2)   Permitted Uses; Notice in a CriminalCase. This evidencemay be admissible for another purpose, such as proving motive, opportunity,intent, preparation, plan, knowledge, identity, absence of mistake, or lack ofaccident. On request by a defendant in a criminal case, the prosecutor must:


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


(B)   do so before trial, or during trial if the court excuseslack of pretrial notice on good cause shown.


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


(1)   Permitted Uses. In a criminal case in which adefendant 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.


(2)   Disclosure. If the prosecution intends to offerthis evidence it shall provide reasonable notice in advance of trial, or duringtrial if the court excuses pretrial notice on good cause shown.


(3)   For purposes of this rule ďchild molestationĒ means anact committed in relation to a child under the age of 14 which would, ifcommitted in this state, be a sexual offense or an attempt to commit a sexualoffense.


(4)   Rule 404(c) does not limit the admissibility of evidenceotherwise admissible under Rule 404(a), 404(b), or any other rule of evidence.



2011 Advisory CommitteeNote. Ė The languageof this rule has been amended as part of the restyling of the Evidence Rules tomake them more easily understood and to make style and terminology consistentthroughout the rules. These changes are intended to be stylistic only. There isno intent to change any result in any ruling on evidence admissibility.




Rule 404(a)-(b) is now Federal Rule ofEvidence 404 verbatim. The 2001 amendments add the notice provisions already inthe federal rule, add the amendments made to the federal rule effectiveDecember 1, 2000, and delete language added to the Utah Rule 404(b) in 1998.However, the deletion of that language is not intended to reinstate the holdingof State v. Doporto, 935 P.2d 484 (Utah 1997).Evidence sought to be admitted under Rule 404(b) must also conform with Rules402 and 403 to be admissible.


The 2008 amendment adds Rule 404(c).It applies in criminal cases where the accused is charged with a sexual offenseagainst a child under the age of 14. Before evidence may be admitted under Rule404(c), the trial court should conduct a hearing out of the presence of thejury to determine: (1) whether the accused committed other acts, which ifcommitted in this State would constitute a sexual offense or an attempt tocommit a sexual offense; (2) whether the evidence of other acts tends to provethe accusedís propensity to commit the crime charged;and (3) whether under Rule 403 the danger of unfair prejudice substantiallyoutweighs the probative value of the evidence, or whether for other reasonslisted in Rule 403 the evidence should not be admitted. The court shouldconsider the factors 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 the request of a party, the courtmay be required to provide a limiting instruction for evidence admitted underRule 404(b) or (c).