Kang Haggerty News
In the August 7, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Bad Character, Good Evidence: Reclaiming Character Evidence for Strategic Use in Civil Litigation.”
Character evidence has a paradoxical position in the law of evidence: deeply relevant in many cases, yet presumptively inadmissible. Under Federal Rule of Evidence 404 and its state counterparts, parties are generally barred from introducing evidence of a person’s character or character trait to argue that they acted in keeping with that character on a particular occasion. This is the so-called “propensity rule,” a prohibition on suggesting that someone did something simply because they are the sort of person who would. Rule 404(a)(1) codifies this general exclusion, and Rule 403’s balancing test, typically used to weigh probative value against prejudicial effect, is preempted in these cases by the categorical nature of the prohibition in Rule 404. There are exceptions, however.
While some codified long-recognized exceptions apply only in criminal cases, the civil context also provides exceptions to the general rule excluding character evidence. In litigation where a party’s character is directly at issue, like defamation, for instance, character evidence can be introduced.
As another example, Rule 404(b) prohibits the use of a person’s other crimes, wrongs, or acts if offered for a character-propensity inference, yet permits such evidence for other purposes, such as showing motive, intent, identity, knowledge, absence of mistake or lack of accident. The habitual truthfulness or untruthfulness of any witness, too, is always fair game. Though frequently overlooked in civil practice, these exceptions create strategic opportunities for litigators to introduce character evidence in civil litigation.
A Witness’s Character Is Always at Issue
There is one key exception to the Federal Rules of Evidence’s general prohibition against character-based propensity reasoning, and it applies to witnesses. Once a witness takes the stand, his credibility becomes relevant under Rule 608(a), which provides that a witness’ credibility may be attacked or supported by testimony about their reputation for truthfulness or untruthfulness, or by opinion testimony. See United States v. Jewell, 614 F.3d 911 (8th Cir. 2010) (recognizing that the lower court erred when it excluded character evidence that attacked the credibility of a witness). This is not a minor exception: the rule permits what would otherwise be inadmissible propensity reasoning. If a witness has a reputation for being a liar, the fact-finder can reasonably infer that the witness is lying now. Litigators often underestimate the strategic role of this rule. In contentious civil litigation where parties present competing factual narratives, even subtle impeachment through the testimony of character witnesses can materially shift how fact-finders weigh the evidence.
Moreover, under Rule 608(b), specific instances of a witness’ past conduct may be inquired into on cross-examination if they are probative of the witness’s character for truthfulness or untruthfulness. This includes past lies, fraud, and falsification of documents, so long as the conduct did not result in a criminal conviction (which is separately governed by Rule 609).
While extrinsic evidence is inadmissible for purposes of proving that such conduct occurred, an effective cross-examination can still leave a damaging impression of the witness’s credibility. Rule 609 further expands the availability of character impeachment by permitting, in most cases, the introduction of evidence of a witness’s prior criminal conviction for a crime involving dishonesty or a felony punishable by more than one year. Though tempered by balancing tests, this rule reinforces the central point: a witness’ character for truthfulness is never off-limits.
Using Character Evidence for ‘Nonpropensity’ Purposes
While Rule 404(a) bars the use of character evidence to prove that a person acted in conformity with that character trait on a specific occasion, Rule 404(b)(2) creates a pathway for using character evidence when it serves a non-propensity purpose. The rule allows evidence of a person’s prior acts if introduced to prove something other than character, such as motive, intent, preparation, plan, knowledge, identity or absence of mistake.
Civil cases routinely involve fact patterns where a party’s intent, state of mind, or prior dealings are central to the dispute. In RICO actions, for instance, prior similar schemes may be admissible to show a defendant’s intent or motive in the present case.
In Waste Management of Louisiana v. River Birch, 920 F.3d 958 (5th Cir. 2019), the plaintiff filed a RICO action, alleging that the defendant competitor, through a $20,000 campaign contribution, bribed the former mayor to shut down its landfill, allowing the defendant’s competing landfill to profit.
The district court granted partial summary judgment, finding that evidence failed to create a genuine issue of material fact to allow a jury to find that the defendant competitor’s campaign contribution was the but-for and proximate cause of the former mayor’s decision to shut down the plaintiff’s landfill.
On appeal, the plaintiff argued that evidence relating to the defendant competitor’s intent and conduct in bribing a former commissioner for the Louisiana Department of Wildlife and Fisheries, who had pleaded guilty to criminal conspiracy, to help defendants shutter competing landfills, including plaintiff’s, constituted circumstantial evidence that precludes summary judgment.
The appellate court agreed, finding that the defendant competitor’s bribery of the former commissioner constituted “other act” evidence, and that the jury could consider the defendant competitor’s intent to bribe the former commissioner in determining the defendant competitor’s motive and intent in connection with their contribution to the former mayor’s campaign.
Regarding the use of the “other act” evidence, the appellate court stated, “it is rare in public bribery cases that there is definitive ‘smoking gun’ evidence to show a payment was made to an official to influence the official to perform some act—and there is no such evidence here. It is critical in cases such as this that inferences from circumstantial evidence about intent and motives about which reasonable minds could differ be sorted out by the jury.”
Likewise, a party’s “other acts” can be admissible to show opportunity in engaging in underlying schemes. In Empress Casino Joliet v. Balmoral Racing Club, 831 F.3d 815 (7th Cir. 2016), Illinois casinos brought a RICO claim against the owners of a racetrack, claiming they had conspired to make a $100,000 campaign contribution to a former governor of Illinois in exchange for his signature on a bill imposing a 3% tax on casinos to fund a trust for the benefit of the Illinois horse-racing industry.
On appeal, the defendants argued that the district court erred by admitting evidence of their legal contributions to the former governor during the five years prior to the year that the tax bill was presented to the former governor for signature. The appellate court disagreed, finding that the district court did not abuse its discretion in declining to exclude the contributions as “propensity” evidence under Federal Rule of Evidence 404(b)(1), reasoning that the casinos would not be using the racetracks’ past legal contributions to the former governor for propensity purposes, because the casinos were trying to prove the opposite of a legal contribution.
Rather, the appellate court found that the past legal contributions were used to show opportunity to engage in an illegal quid pro quo scheme, which is a permissible use of “other acts” under Rule 404(b)(2). The appellate court further noted that the district court limited plaintiffs’ use of the contributions to showing that the racetracks had a regular practice of making significant contributions to the former governor’s campaigns, which was consistent with the reasoning of using the evidence to show opportunity to engage in an illegal scheme.
As illustrated by the two examples, the key to using character evidence is that the evidence must be relevant to a fact at issue, independent of the forbidden propensity inference. Courts carefully apply the Rule 403 balancing test to ensure the probative value of such evidence outweighs the risk of unfair prejudice, but Rule 404 does not foreclose the analysis. As long as the party offering the evidence can articulate a noncharacter-based rationale for its admission and link it to a material issue in the case, Rule 404(b) allows the jury to hear it.
The continued viability of these exceptions in civil practice underscores the artificiality of a strict character evidence bar. In many civil disputes, particularly those turning on intent, credibility, or pattern of conduct, evidence resembling “character” is relevant and essential. Sometimes, the thing distinguishing inadmissible from admissible evidence is counsel’s skill in framing its purpose.
Conclusion
Civil litigators often overlook character evidence, assuming it to be inadmissible. But the Federal Rules of Evidence and their state counterparts do not impose a categorical ban on character evidence. Deployed for nonpropensity purposes, or to reflect on the credibility of a witness, character evidence can become a powerful tool to help establish what a party knew, why they acted, or whether they’re telling the truth.
As with witness credibility under Rule 608 or patterns of conduct under Rule 404(b), there are times when character is not just admissible but essential. As such, practitioners should approach character evidence as a subtle, strategic resource.
When used thoughtfully and anchored in a legitimate evidentiary purpose, it can offer critical insights to judges and juries alike. The real challenge is not whether to use character evidence (you should), but how to do so effectively and persuasively.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.
Reprinted with permission from the August 7, 2025 edition of “The Legal Intelligencer” © 2025 ALM Global, LLC. All rights reserved. Further duplication without permission is prohibited. Request academic re-use from www.copyright.com. All other uses, submit a request to asset-and-logo-licensing@alm.com. For more information visit Asset & Logo Licensing.