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Rule 405. Methods of Proving Character.
(a)0Reputation or Opinion. The common law traditionally has provided that proof of character or a trait of character of a person, when permitted, may be made by testimony as to reputation only. Reputation evidence is usually presented by calling a witness to the stand who is familiar with the reputation of the defendant, or perhaps the victim, if the victim's character is being challenged, and asking the witness to state what the reputation is in the community where the defendant or victim lives. The foundation for such testimony comes in the form of establishing that the witness has sufficient familiarity with the people in the community so that he can make a valid attempt at assessing reputation.
The rationale for the limitation was best stated by Dean Ladd:
The object of the law in making reputation the test of character is to get the aggregate judgment of a community rather than the personal opinion of the witness which might be considered to be warped by his own feeling or prejudice. Even reputation must, to be admitted, be general in a community rather than based upon a limited class. While it is not necessary that a character witness know what the majority of a neighborhood think of a person, he must know of the general regard with which the party is commonly held.
It is the general concurrence of a great number of people reflecting the sentiment toward the party whose character is subject to inquiry that is necessary to establish a reputation and to warrant its use as evidence. In this, the theory of the law is that trustworthiness is gained from the expressions of many people in their estimation of a person which would not be obtained by the individual opinion of a single witness however well acquainted he might be with the party's character.
The requirement that the reputation be broadly general rather than that of a particular group0.0.0.0again emphasizes the effort to get away from the secularized and consequently biased estimate of character0.0.0.0The reputed character of a person is created from the slow spreading influence of community opinion growing out of his behavior in the society in which he moves and is known and upon this basis is accepted as proof of what his character actually is.
Ladd, Techniques and Theory of Character Testimony, 24 Iowa L. Rev. 458, 513 (1939).
There is a growing trend in common law jurisdictions to permit testimony as to the person's reputation where he works, as well as where he lives. The Federal Rule, on which this Rule is modeled, does not indicate the scope of reputation evidence. This rule fills a gap left in the Federal Rule by clearly stating that reputation evidence is not confined to the community in which the defendant lives; reputation where the defendant works, goes to school or in a group with whom the defendant habitually associates will suffice. See Uniform Rule 63(28) (1953); McCormick, Evidence § 191, at 456; 112 A.L.R. 1020 (1938).
While not explicitly required by the rule, reputation evidence to be relevant must relate to the period in which the acts giving rise to the litigation took place. The evidence must relate to a relevant trait of character under Rule 404.
Besides expanding the scope of permissible reputation evidence, this rule departs from the majority common law view in permitting opinion evidence to be admitted. It is consistent, however, with recent Alaska cases. See, e.g., Freeman v. State 486 P.2d 967 (Alaska 1971). This was considered such a controversial issue that the House Committee on the Judiciary deleted the provision allowing for opinion evidence in its proposed draft of rules. During the House debate, the provision was reinstated. The case for opinion testimony is made by Wigmore:
Put any one of us on trial for a false charge, and ask him whether he would not rather invoke in his vindication, as Lord Kenyon said, "The warm affectionate testimony" of those few whose long intimacy and trust has made them ready to demonstrate their faith to the jury, than any amount of colorful assertions about reputation. Take the place of a juryman, and speculate whether he is helped more by the witnesses whose personal intimacy gives to their belief a first and highest value, or by those who merely repeat a form of words in which the term "reputation" occurs.
7 Wigmore, Evidence § 1936, at 166.
In opening the door to this evidence, Rule 405 places both familiar and new responsibilities on the trial judge.
He will have to exercise firm control over the proceedings to insure that the witness does not relate the particular incidents on which he bases his opinion of defendant-for proof of character by specific acts is still prohibited. And as with all testimony, he will have to weigh its probative value against the countervailing factors to admissibility specified in Rule 403.
2 Weinstein's Evidence, ¶ 405[03] (1975). In exercising the sound discretion required by Rule 403, the trial judge should be able to handle the new types of opinion testimony that may be offered when Rule 405 is considered in conjunction with other Rules that expand categories of admissible evidence. See, People v. Jones, 266 P.2d 38 (Cal. 1954); cf., United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950). See generally Curran, Expert Psychiatric Evidence of Personality Traits, 103 U. Pa. L. Rev. 999 (1955); Falknor & Steffen, Evidence of Character: From the "Crucible of the Community" to the "Couch of the Psychiatrist," 102 U. Pa. L. Rev. 980 (1954). Alaska has had experience with novel types of opinion. See Freeman v. State, supra.
As discussed in the next paragraph, specific acts cannot be used to prove character unless a character trait is in issue. But specific acts can be used to prove the knowledge of a character witness on cross-examination. According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct relevant to the trait in question if the crossexaminer has a good faith belief that the conduct actually took place. Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258 (1956). The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony.
(b)0Specific Instances of Conduct. Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it poses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the Rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue. This treatment is, with respect to specific instances of conduct and reputation, conventional contemporary common law doctrine. McCormick (2d ed.) § 187.
Probably the most familiar example of character being in issue is the libel case where someone publishes a charge that the plaintiff is a thief, plaintiff sues the publisher, and a defense of truth is raised. The publisher is entitled to show the specific acts that prove the charge. Another familiar example is a case in which an employer is charged with negligently hiring or retaining an incompetent employee. On the question of the competence of the employee, both sides are entitled (and may have to in order to satisfy burden of proof requirements) to offer evidence of specific acts of the employee demonstrating competence or incompetence.
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Last Modified 7/14/1999
