Intro to the Federal Rules of Evidence - 10

7. Methods of proving character (FRE 405)

a. 405(a): character evidence – by opinion/reputation
i) Rationale
Evidence of specific acts is the most convincing. But at the same time, it possesses the greatest capacity to cause undue prejudice, confusion or waste of time. When character is used circumstantially, proof may be only by reputation and opinion.
ii) 3 types
1) by evidence of reputation
2) by opinion evidence: by one who knows the party well
3) by proof of specific instances of conduct: only on X-X; no extrinsic evidence permissible for judicial expedition and efficiency.

b. 405(b): character in issue
Opinion, reputation, or specific acts

c. Proof for other purposes of FRE 404(b)
It is interpreted that evidence of specific acts is admissible on direct and on cross-examination.


Example 1: (Assault – Self-Defense Case)
Q (DEFENSE LAWYER) : Mr. Quigley, do you have a personal opinion of the victim’s character for peacefulness?
A: Yes. I’ve known him for a long time.
Q: What is your personal opinion of his character?
PROSECUTOR: Objection. Improper character evidence.
JUDGE: Overruled. The witness may answer.
A: In my opinion, he’s extremely violent person.
Q: Can you give us examples of times he has been violent?
PROSECUTOR: Objection, your honor. Now they’re trying to go into specific instances of conduct. That’s improper under Rule 405.
JUDGE: Sustained.

Whenever a witness testifies about someone else’s character in reputation or personal opinion form, the witness may be cross-examined about specific instances of conduct inconsistent with the claimed character (so long as there is a good-faith ethical basis for asking about them)

Example 2: FRE 405(1) & 608(b)
Q (PROSECUTOR): You say the defendant’s reputation for peacefulness in our community is good?
A: That’s right.
Q: Mr. Adams, did you hear that the defendant assaulted another man at the City Tavern last year?
DEFENSE: Objection, your honor. They’re trying to go into specific instances of conduct.
JUDGE: Overruled. This is cross-examination. The witness may answer.
A: No, I didn’t hear anything about that.