RULE 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTION; OTHER CRIMES

(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. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. 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 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;

(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. 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. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Note:

Rule 404(a) is identical to the federal rule and is consistent with the law in South Carolina. State v. Peake, 302 S.C. 378, 396 S.E.2d 362 (1990).

Rule 404(a)(1) is identical to the federal rule and is consistent with the law in South Carolina. State v. Lyles, 210 S.C. 87, 41 S.E.2d 625 (1947) (a defendant may put in evidence of his good character); State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990) (when the accused offers evidence of his good character regarding specific character traits relevant to the crime charged, the state may cross-examine as to acts relating to the traits focused on by the accused).

Rule 404(a)(2) identical to the federal rule and is consistent with the law in South Carolina. State v. Boyd, 126 S.C. 300, 119 S.E. 839 (1923).

Rule 404(b) differs in two respects from the federal rule. First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). See also Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369 (1943) (Lyle applicable in civil cases). Second, the South Carolina rule does not contain the requirement which is in the federal rule that, upon request by an accused, the prosecution must provide reasonable notice of the general nature of any evidence it intends to introduce under the rule. With the exception of notice of evidence to be used in aggravation in the sentencing phase of capital cases, S.C. Code Ann. § 16-3-20(B) (Supp. 1993), there is no similar requirement under South Carolina law. The rule does not set forth the burden of proof required for the admission of evidence of bad acts not the subject of a conviction and, therefore, case law would control. State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989) (in a criminal case, evidence of other crimes or bad acts must be clear and convincing if the acts are not the subject of a conviction). Further, when the prejudicial effect of evidence substantially outweighs its probative value, the evidence may be excluded under Rule 403 which is consistent with prior case law. State v. Garner, 304 S.C. 220, 403 S.E.2d 631 (1991).