Rule 404 - Character Evidence; Crimes or Other Acts(a)Character Evidence.(1)Prohibited Uses. 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 the character or trait. (2)Exceptions for Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. (3)Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. (b)Crimes, Wrongs, or Other Acts.(1)Prohibited Uses. Evidence of a crime, wrong, or other 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 the character. (2)Permitted Uses; Notice Required. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Any party seeking the admission of evidence pursuant to this subsection must: (A) provide reasonable notice of the general nature and the specific and precise purpose for which the evidence is being offered by the party at trial; and (B) do so before trial - or during trial if the court, for good cause, excuses lack of pretrial notice. COMMENT ON RULE 404
Rule 404 adopts the language of the federal rule, with modification, to make it more easily understood and to make style and terminology consistent throughout the rules. The modification reflects the requirements of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), and broadens the requirement of reasonable notice to every party, not just the state in a criminal prosecution, of the general nature of and the specific and precise purpose for which the evidence is being offered by the party at trial. Consistent with the federal rule, the "rape shield" provisions formerly in Rule 404(a) are moved to a new Rule 412. There is no intent to change any result in any ruling on evidence admissibility.