Character Evidence — Determine admissibility of character evidence - Bar Exam Uniform

SECTION 1

Historical Context & Motivation

The rules governing character evidence are among the oldest and most deeply embedded doctrines in Anglo-American evidence law. Courts have long recognized a fundamental tension: while a person's past behavior and general reputation may seem highly relevant to whether that person acted in conformity on a particular occasion, the risk of unfair prejudice—jurors punishing a party for being a "bad person" rather than evaluating the conduct at issue—has historically been seen as too great to allow free admission of such proof. This concern animated the common law's development of an elaborate framework of rules and exceptions that the Federal Rules of Evidence later codified and, in many respects, reformed.

Understanding why the law takes the approach it does requires appreciating the historical evolution of trial procedure. In early English courts, jurors were often neighbors who already knew the parties, rendering formal character proof unnecessary. As trials became more formalized and jurors more distant from the litigants, the question of how—and whether—to let a party introduce evidence of someone's general character became urgent. The result was a body of doctrine that draws sharp lines between civil and criminal cases, between the accused and the victim, and between proof offered on direct examination versus cross-examination.

1700s • Common Law Character Ban Emerges

English courts develop the general rule prohibiting the use of a person's character to prove conforming conduct, recognizing the risk of jury prejudice and confusion of issues.

1808 • Rex v. Rowton

This landmark English decision establishes that when character evidence is admissible, it must be proven through reputation testimony rather than specific instances of conduct, shaping the common law method of proof.

1948 • Michelson v. United States

The U.S. Supreme Court reaffirms the accused's right to introduce good-character evidence, describing it as a 'privilege' deeply rooted in the adversarial system, while allowing cross-examination with 'have you heard' questions.

1975 • Federal Rules of Evidence Enacted

Congress adopts the Federal Rules of Evidence, codifying character evidence rules in FRE 404, 405, and 608. The Rules preserve the general prohibition but carve out important exceptions for criminal defendants, victims, and witnesses.

2006 • FRE 404(a) Amended

The 2006 amendment clarifies that in criminal cases only the accused may 'open the door' to character evidence; once the accused does so, the prosecution may respond in kind, including evidence of the victim's pertinent character trait.

The central question this body of law addresses is deceptively simple: When may a party introduce evidence about someone's character, and by what methods may that character be proven? Answering it requires navigating a multi-layered decision tree that distinguishes among purposes of the evidence, the type of case, who offers it, and the form of proof permitted.

SECTION 2

Core Principles & Definitions

Before diving into the specific rules, it is essential to internalize the foundational principles that give the character evidence framework its logic. The entire doctrine rests on a distinction between two fundamentally different uses of character: circumstantial use (using character to suggest someone acted in conformity with that character on a particular occasion) and all other purposes. When character is used circumstantially, FRE 404(a)(1) erects a general prohibition subject to enumerated exceptions. When character is used for a non-propensity purpose—or when character itself is an essential element of a claim or defense—entirely different rules apply.

The Propensity Ban (FRE 404(a)(1))

Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. This is the default rule.

Criminal Defendant Exception (FRE 404(a)(2)(A))

A criminal defendant may offer evidence of a pertinent character trait. If the defendant opens this door, the prosecution may rebut with evidence of the same trait.

Victim's Character (FRE 404(a)(2)(B))

A criminal defendant may offer evidence of a victim's pertinent character trait (e.g., violent character in a self-defense case). If so, the prosecution may rebut with evidence of the victim's same trait or the defendant's same trait.

Methods of Proof (FRE 405)

When character evidence is admissible, proof is generally limited to reputation or opinion testimony. Specific instances of conduct are allowed only when character is an essential element of a claim or defense, or on cross-examination.

Non-Propensity Purposes (FRE 404(b))

Evidence of other crimes, wrongs, or acts may be admitted for purposes such as MIMIC: Motive, Intent, absence of Mistake, Identity, or Common plan/scheme—so long as it is not used solely to show propensity.

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KEY TAKEAWAY

Think of character evidence like a locked gate with a guard. The gate is locked by default (the propensity ban). Only certain key-holders—primarily the criminal defendant—can unlock it. Once the gate is opened, the other side gets to walk through too (prosecution rebuttal). But there is a separate service entrance around back (FRE 404(b)) that lets evidence in for non-character purposes, provided you can show a legitimate reason for using it. Confusing the main gate with the service entrance is one of the most common mistakes on the bar exam.

SECTION 3

Visual Decision Framework

The admissibility of character evidence is best understood as a structured decision tree. The following diagram traces the analytical path a practitioner or bar examinee should follow when confronted with a character evidence question. Begin at the top by asking the threshold question: For what purpose is the character evidence being offered? The answer channels you into one of three distinct analytical tracks.

This decision tree illustrates the three main analytical tracks for character evidence: propensity use (left), non-propensity use (center), and character-as-element (right). Note that the method of proof varies by track, with the most permissive methods reserved for essential-element situations.

The diagram above reveals the hierarchical structure of the analysis. The first and most critical question is always whether the evidence is being offered to prove propensity (conforming conduct) or for some other legitimate purpose. If propensity is the purpose, the evidence is generally excluded in civil cases and admissible in criminal cases only through the narrow gateway the accused opens. If the purpose is non-propensity (MIMIC), the evidence may come in regardless of case type—but only if it survives the FRE 403 balancing test. Finally, where character itself is an essential element of a claim, charge, or defense—such as defamation, negligent entrustment, or entrapment—all methods of proof, including specific instances, are available.

SECTION 4

Deep Dive: The Rules in Action

FRE 404(a): The General Prohibition and Its Criminal Exceptions

Federal Rule of Evidence 404(a)(1) establishes the default position: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. This prohibition reflects the law's judgment that the inferential chain—from trait to conduct—is too attenuated and too prejudicial to be trusted to juries as a general matter. The rule applies in both civil and criminal cases as a baseline, but the exceptions apply only in criminal proceedings.

Under FRE 404(a)(2)(A), a criminal defendant may offer evidence of a pertinent trait of the defendant's own character. The trait must be "pertinent" to the charge—a defendant charged with assault might offer evidence of peacefulness, but a defendant charged with fraud could not offer evidence of peacefulness because that trait is not pertinent. Once the defendant introduces this evidence, the prosecution may offer evidence to rebut it, limited to the same trait.

Under FRE 404(a)(2)(B), a criminal defendant may offer evidence of an alleged victim's pertinent character trait. This arises most often in self-defense cases, where the defendant seeks to show that the victim had a violent character. If the defendant offers such evidence, the prosecution may rebut it in two ways: (1) by offering evidence of the victim's character for the same trait, and (2) by offering evidence of the defendant's character for the same trait. Additionally, under FRE 404(a)(2)(C), in a homicide case where the defendant claims the victim was the first aggressor, the prosecution may offer evidence of the victim's trait of peacefulness regardless of whether the defendant has first offered character evidence.

FRE 404(b): Other Crimes, Wrongs, or Acts

FRE 404(b)(1) restates the propensity ban: evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character. However, FRE 404(b)(2) provides that such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The mnemonic MIMIC captures the most commonly tested purposes. In criminal cases, the prosecution must provide reasonable notice before trial of the general nature of any 404(b) evidence it intends to offer.

FRE 405: Methods of Proving Character

Once you determine that character evidence is admissible, FRE 405 dictates the permissible method of proof. Under FRE 405(a), when character evidence is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination, the court may allow inquiry into relevant specific instances of conduct. Under FRE 405(b), when a person's character or character trait is an essential element of a charge, claim, or defense, the character may be proved by specific instances of conduct as well.

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Bar Exam Tip: The "Mercy Rule"

The term "mercy rule" refers to the criminal defendant's privilege under FRE 404(a)(2)(A) to introduce good-character evidence. This label does not appear in the Rules themselves but is widely used in bar exam preparation. Remember: only the defendant can open this door. The prosecution cannot introduce bad-character evidence about the defendant in its case-in-chief unless the defendant has first put character at issue.

SECTION 5

Methods of Proof & Special Contexts

A persistent source of confusion is the relationship between when character evidence may be offered and how it may be proven. These are sequential questions: FRE 404 answers the "when," and FRE 405 answers the "how." The diagram below maps the permissible methods of proof to each context in which character evidence is admissible.

This matrix cross-references each admissibility context with the three methods of proving character. Note that specific instances on direct examination are available only when character is an essential element or when prior acts are offered for a non-propensity (MIMIC) purpose.

Special Context: Sexual Assault and Child Molestation Cases

Federal Rules 413–415 create a significant exception to the general character evidence framework in cases involving sexual assault and child molestation. Under these rules, evidence that the defendant committed any other sexual assault or child molestation is admissible and may be considered for its bearing on any matter to which it is relevant—including propensity. This represents a deliberate congressional override of the general ban on propensity evidence in these specific categories. The evidence remains subject to FRE 403 balancing, and the prosecution must disclose the evidence at least fifteen days before trial.

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Rape Shield Rule (FRE 412)

FRE 412 operates as an exclusionary rule in the opposite direction. In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the victim's sexual behavior or sexual predisposition is generally inadmissible, subject to narrow exceptions in criminal cases (e.g., evidence of specific sexual behavior with the accused to prove consent, or evidence showing another person as the source of physical evidence).

SECTION 6

Worked Example: Analyzing a Character Evidence Problem

Consider the following fact pattern, which is representative of bar exam character evidence questions. Work through the analysis systematically using the decision tree from Section 3.

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Fact Pattern

Dan is charged with assault for allegedly punching Victor during an argument at a bar. Dan claims self-defense, asserting that Victor threw the first punch. During his case-in-chief, Dan calls Witness 1, who testifies that Dan has a reputation in the community as a peaceful person. Dan also calls Witness 2, who testifies that Victor has a reputation for violence. On cross-examination of Witness 1, the prosecutor asks: "Have you heard that Dan was involved in a bar fight two years ago?" The prosecution then calls Witness 3 in its rebuttal case, who testifies that in her opinion, Dan is an aggressive person.

Admissibility Analysis

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Step 1 — Witness 1's Testimony About Dan's Peaceful Character

Begin by identifying the purpose: Dan is offering evidence of his own character for peacefulness to suggest he acted in conformity with that trait on the occasion of the alleged assault (i.e., he did not throw the first punch). This is a propensity use. Under FRE 404(a)(2)(A), a criminal defendant may offer evidence of a pertinent character trait. Peacefulness is pertinent to an assault charge. The method of proof is reputation testimony, which is permitted under FRE 405(a).

ADMISSIBLE. Defendant's pertinent character trait proven by reputation testimony.
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Step 2 — Witness 2's Testimony About Victor's Violent Character

Dan offers evidence of the victim's character for violence to support his self-defense claim. Under FRE 404(a)(2)(B), a criminal defendant may offer evidence of a victim's pertinent character trait. In a self-defense case, the victim's violent character is pertinent because it tends to show the victim was the first aggressor. The method is reputation testimony under FRE 405(a).

ADMISSIBLE. Victim's pertinent character trait proven by reputation testimony.
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Step 3 — Prosecutor's Cross-Examination Question to Witness 1

The prosecutor asks Witness 1 on cross-examination whether she has heard about a specific instance of conduct (Dan's prior bar fight). Under FRE 405(a), on cross-examination of a character witness, the court may allow inquiry into relevant specific instances of conduct. The "have you heard" question is the classic form for testing a reputation witness's knowledge of the community's view. The prior bar fight is relevant to Dan's character for peacefulness. The question is proper, but the prosecutor must have a good-faith basis for asking it, and the witness's answer is limited—extrinsic evidence to prove the specific act is not permitted.

ADMISSIBLE. Specific instance inquiry permitted on cross-examination of character witness.
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Step 4 — Witness 3's Opinion That Dan Is Aggressive

The prosecution calls Witness 3 in rebuttal to offer evidence that Dan has an aggressive character. Because Dan has already "opened the door" by introducing evidence of his peaceful character under 404(a)(2)(A), the prosecution is permitted to offer evidence of the same trait (peacefulness/aggressiveness being two sides of the same coin) under the rebuttal provision. The method is opinion testimony, which is expressly permitted under FRE 405(a). Note that the prosecution could not have introduced this evidence in its case-in-chief before Dan opened the door.

ADMISSIBLE. Prosecution rebuttal of defendant's character evidence via opinion testimony.
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Step 5 — Bonus: What if This Were a Civil Assault Case?

If the same facts arose in a civil battery lawsuit rather than a criminal prosecution, the analysis changes dramatically. The FRE 404(a)(2) exceptions apply only in criminal cases. In a civil case, character evidence offered to prove propensity is inadmissible under the general ban of FRE 404(a)(1). Witness 1, Witness 2, and Witness 3 would all be barred from testifying about Dan's or Victor's character for the purpose of proving conforming conduct. The only avenues would be 404(b) non-propensity purposes or the essential-element exception under 405(b).

INADMISSIBLE in a civil case. The criminal defendant exceptions do not apply.

SECTION 7

Key Distinctions & Common Pitfalls

Character evidence questions on the bar exam are designed to test whether examinees can maintain sharp distinctions between concepts that superficially resemble one another. The following table highlights the most frequently tested distinctions and the errors that commonly lead to incorrect answers.

Distinction	Rule / Principle	Common Pitfall
Propensity vs. MIMIC purpose	404(a) bars propensity use; 404(b) permits non-propensity use. The same evidence may be admissible or inadmissible depending on the stated purpose.	Assuming that any prior bad act is automatically barred. Always check whether a non-propensity purpose exists.
Civil vs. Criminal propensity	Propensity character evidence exceptions under 404(a)(2) apply only in criminal cases.	Allowing character evidence in a civil battery case by analogy to criminal assault—the rule does not permit this.
Reputation/opinion vs. specific instances	405(a) limits direct proof to reputation or opinion; specific instances only on cross. 405(b) allows all methods when character is an element.	Allowing a character witness to testify about specific acts on direct examination when character is not an essential element.
"Have you heard" vs. "Do you know"	"Have you heard" tests reputation witnesses; "Do you know" tests opinion witnesses. Both are cross-examination techniques.	Confusing the two forms or treating them as interchangeable. The distinction reflects whether the witness is testifying about community reputation or personal knowledge.
Opening the door: Δ's character vs. victim's character	Under 404(a)(2)(B), if Δ attacks victim's character, prosecution may rebut with victim's good character AND Δ's bad character for the same trait.	Forgetting that attacking the victim's character under 404(a)(2)(B) also opens the door to prosecution evidence about the defendant's character.

Key distinctions tested on the bar exam

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KEY TAKEAWAY

Character evidence analysis is like a security checkpoint at an airport. Different types of passengers (evidence) go through different lanes. Propensity evidence goes through the most restrictive lane—criminal defendants have a special pass, but civil litigants are turned away entirely. MIMIC evidence uses a faster lane but still undergoes FRE 403 screening. Essential element evidence gets pre-clearance—it goes through with minimal friction because character is the very thing being litigated.

SECTION 8

Connections to Habit, Impeachment & Advanced Rules

Character evidence does not exist in isolation. It interacts with several adjacent evidence doctrines that bar examinees must understand to avoid analytical errors. The most important of these are habit evidence under FRE 406, witness impeachment under FRE 608 and 609, and the FRE 403 balancing test that governs all admissible evidence.

Concept	Character Evidence (FRE 404–405)	Related Doctrine
Habit (FRE 406)	Character = general disposition (e.g., "careful driver"). Subject to 404(a) restrictions. Proved by reputation or opinion.	Habit = semi-automatic, specific, repeated behavior (e.g., "always signals before turning"). Freely admissible in civil and criminal cases. May be proved by specific instances.
Witness Impeachment (FRE 608)	404(a) governs substantive character evidence about parties and victims.	608 governs witness credibility. Any witness's character for truthfulness may be attacked by reputation or opinion under 608(a), and specific instances may be inquired into on cross under 608(b).
Prior Convictions (FRE 609)	404 addresses character generally; 404(b) addresses prior acts for non-propensity purposes.	609 is a specialized impeachment rule permitting prior felony convictions and crimen falsi convictions to attack credibility, subject to its own balancing tests.
FRE 403 Balancing	Character evidence has its own admissibility gateway under 404 and 405.	Even evidence that passes 404/405 may still be excluded under 403 if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Character evidence and related evidence doctrines

The distinction between character and habit is one of the most frequently tested concepts on the bar exam. The key differentiator is specificity and regularity. Character is a general trait ("she is honest"), while habit is a specific, repeated response to a particular situation ("she always locks the safe before leaving the office"). Because habit evidence involves a near-automatic response, the law considers it more reliable and less prejudicial than character evidence, and it is therefore freely admissible under FRE 406 without the restrictions that govern character under FRE 404.

Looking ahead, as you study hearsay, confrontation rights, and privilege doctrines, you will see that the character evidence framework serves as a template for the broader evidentiary methodology: identify the purpose of the evidence, apply the specific exclusionary rule, check for exceptions, determine the permissible method of proof, and finally apply the FRE 403 balancing test as a residual safeguard. Mastering this analytical sequence in the character evidence context will serve you well across all evidence topics.

SECTION 9

Practice Problems

Question 1: CONCEPTUAL

In a civil negligence lawsuit arising from a car accident, the plaintiff seeks to introduce testimony from a neighbor that the defendant has a reputation in the community for being a reckless driver. The defendant objects. Should the court sustain or overrule the objection?

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The court should sustain the objection. Under FRE 404(a)(1), evidence of a person's character or character trait is not admissible to prove that the person acted in accordance with that character on a particular occasion. The exceptions in FRE 404(a)(2) apply only in criminal cases, not civil cases. The plaintiff is attempting to use the defendant's reputation for recklessness as circumstantial evidence that the defendant drove recklessly on the occasion in question—a classic propensity use that is barred by the general rule. If the plaintiff wished to introduce evidence of a specific habit (e.g., always texting while driving on this particular road), that would be analyzed under FRE 406, not FRE 404.

Question 2: BASIC APPLICATION

Derek is on trial for embezzlement. During his case-in-chief, Derek calls his former employer, who testifies: "In my opinion, Derek is one of the most honest people I have ever known." The prosecution objects. Is the testimony admissible?

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The testimony is admissible. Under FRE 404(a)(2)(A), a criminal defendant may offer evidence of a pertinent trait of the defendant's own character. Honesty is a pertinent trait in an embezzlement prosecution because the charge directly involves dishonest conduct. Under FRE 405(a), when character evidence is admissible, it may be proved by opinion testimony, which is exactly what the former employer is providing. The prosecution's objection should be overruled. However, by introducing this evidence, Derek has "opened the door"—the prosecution may now rebut with its own reputation or opinion evidence that Derek is dishonest, and on cross-examination of the character witness, the prosecution may inquire into specific instances of Derek's conduct relevant to honesty.

Question 3: INTERMEDIATE

Maria is charged with arson. The prosecution seeks to introduce evidence that Maria committed a separate arson at a different building three months earlier. The prosecution argues the evidence shows Maria's identity as the arsonist because both fires were set using an unusual accelerant placed in the same distinctive pattern. Maria objects under FRE 404. How should the court rule?

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The court should likely overrule the objection and admit the evidence. While FRE 404(b)(1) prohibits using other crimes or acts to prove character for the purpose of showing conforming conduct, FRE 404(b)(2) expressly permits such evidence when offered for another purpose, including proving identity. The prosecution's theory is that the distinctive method—an unusual accelerant in a distinctive pattern—constitutes a "signature" or modus operandi that links Maria to both fires. This is a classic identity-based use of 404(b) evidence. The evidence must still survive FRE 403 balancing: the court must determine whether the probative value of the prior arson is substantially outweighed by the danger of unfair prejudice. The more distinctive the method, the higher the probative value and the more likely the evidence survives 403 balancing. The prosecution must also provide reasonable notice before trial of its intent to use this evidence.

Question 4: APPLIED

In a negligent entrustment action, the plaintiff alleges that Parent negligently lent the family car to Teenager, knowing Teenager was an incompetent driver. Parent calls a witness who testifies about three specific incidents where Teenager drove safely and responsibly. The plaintiff objects that specific instances of conduct are not permitted to prove character. How should the court rule, and why?

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The court should overrule the objection. Negligent entrustment is one of the recognized claims where character is an "essential element" under FRE 405(b). The plaintiff must prove that Parent knew or should have known that Teenager was an incompetent or reckless driver—Teenager's driving character is directly at issue as a substantive element of the claim. When character is an essential element, FRE 405(b) permits proof by specific instances of the person's conduct, in addition to reputation and opinion testimony. This is the broadest method of proof available under the character evidence framework. The plaintiff's objection confuses the general rule under 405(a)—which limits direct examination proof to reputation and opinion—with the essential-element exception under 405(b), which removes that limitation. This is a high-yield distinction for the bar exam.

Question 5: CRITICAL THINKING

Alex is charged with battery against Beth. Alex raises self-defense and offers reputation testimony that Beth is violent. On rebuttal, the prosecution calls a witness to testify that Alex has a reputation for aggressiveness. Alex objects, arguing that he only attacked Beth's character, not his own, and that the prosecution cannot introduce evidence of his character under these circumstances. Evaluate Alex's argument.

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Alex's argument is incorrect, and the prosecution's evidence should be admitted. This question tests a nuance that many examinees miss. Under the pre-2006 version of FRE 404(a)(2)(B), when the defendant offered evidence of a victim's character trait, the prosecution could only rebut with evidence of the victim's character for the same trait. The 2006 amendment, however, broadened the prosecution's rebuttal rights: FRE 404(a)(2)(B)(i) allows the prosecution to offer evidence of the victim's same trait, and crucially, FRE 404(a)(2)(B)(ii) now allows the prosecution to offer evidence of the defendant's character for the same trait. The policy rationale is that when a defendant attacks the victim's character for violence, the prosecution should be able to present a complete picture by showing that the defendant, not the victim, was the likely aggressor. Alex's argument reflects the pre-amendment rule and fails under the current version of FRE 404(a)(2)(B). The method of proof (reputation testimony) is proper under FRE 405(a).

SUMMARY

Character Evidence: Complete Review

Summary

The general rule under FRE 404(a)(1) prohibits the use of character evidence to prove propensity—that a person acted in conformity with a character trait on a particular occasion. This ban applies in both civil and criminal cases. In criminal cases only, three exceptions permit character evidence: the defendant's pertinent trait (mercy rule) under 404(a)(2)(A), the victim's pertinent trait under 404(a)(2)(B), and the homicide victim's peacefulness under 404(a)(2)(C). Only the defendant can open the door to propensity evidence; the prosecution may then rebut.

When character evidence is admissible, FRE 405(a) limits proof on direct examination to reputation or opinion testimony, while specific instances may be raised only on cross-examination—unless character is an essential element under 405(b), in which case all methods are available. Separately, FRE 404(b) (MIMIC) permits evidence of other acts for non-propensity purposes such as motive, intent, identity, absence of mistake, and common plan. Always remember that even admissible character evidence remains subject to FRE 403 balancing and must not be confused with habit evidence (FRE 406), which is freely admissible, or witness impeachment (FRE 608–609), which is governed by its own set of rules.