SCRE 404

(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).