Rule 405. Methods of Proving Character

(b)  Specific instances of conduct.  In cases in which character or a trait of character of a person is an essential element of an offense or defense, proof may also be made of specific instances of the person’s conduct.
(c)  Affidavits.  The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused.  If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused.  Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.

Mil. R. Evid. 405(a) and (b) are essentially the same as the Federal Rules.  Mil. R. Evid. 405(c)has no federal counterpart, and is made necessary by the worldwide disposition of the armed forces and the difficulty of securing witnesses, particularly in connection with brief statements concerning character.  Rule 405(c)is based on prior military practice and permits the defense to use affidavits or other documentary evidence to establish the accused’s character. 

When Character Is Not in Issue.

Reputation and/or opinion testimony ONLY – not the reason(s) why.   For purposes of reputation testimony, “community” broadly defined to include patrons at officer’s club bar.  United States v. Reveles, 41 M.J. 388 (1995).

The witness giving the reputation or opinion testimony is subject to impeachment concerning relevant specific instances of conduct.  (Mil. R. Evid. 405(a)), and under Mil. R. Evid. 404(a), the issue of the accused’s character is the proper subject of character evidence in rebuttal by the prosecution.

United States v. Brewer, 43 M.J. 43 (1995). Trial counsel can test soundness of defense good character testimony through inquiry into specific acts of conduct occurring outside the time period upon which the witness bases his opinion.  Counsel can’t, however, cross with questions concerning the charged offense.

Counsel must first have a good faith basis for believing the conduct occurred before cross-examining the witness about it.  United States v. Pruitt, 43 M.J. 864 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 148 (1997).

Counsel is bound by the witness’s answer - extrinsic proof of the conduct is not allowed. United States v. Robertson, 39 M.J. 211 (C.M.A.1994), cert. denied, 115 S. Ct. 721 (1995).

When cross-examining on specific instances of conduct, the focus should be on the underlying conduct and not the governmental action taken in response.  For example, in cross-examining a defense character witness, the trial counsel’s questions should focus on the conduct which led to an article 15 and not the fact of the article 15 itself.  Robertson, 39 M.J. at 214-15.

Rebuttal also is proper when the accused claims that he or she is not the sort of person who would do such a thing.  “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”  Michelson, 335 U.S. at 479.  United States v. Johnson, 46 M.J. 8 (1997).

But see United States v. Trimper, 28 M.J. 460 (C.M.A.) cert. denied, 493 U.S. 965 (1989).  Even if the accused opens the door to uncharged misconduct (here by claiming to have never used cocaine), the judge must decide whether unfair prejudicial effect of the rebuttal evidence substantially outweighs its probative value (MRE 403).  See also United States v. Grahm 50 M.J. 56 (1999).  CAAF held it was reversible error to allow trial counsel to question accused about prior positive urinalysis, even though accused testified that he never knowingly used drugs and he was surprised when he tested positive for THC. 

United States v. Matthews, 53 M.J. 465 (2000).  Accused tested positive for THC on 29 April 1996.  At trial she presented a good soldier defense and testified that she did not use marijuana between 1 and 29 April 1996.  She also testified that she had no idea how the test results could be positive.  The military judge allowed the government to rebut this good soldier/innocent ingestion defense with positive test results from a command directed urinalysis that occurred 23 days after the first urinalysis.  The CAAF reversed the Air Force Court and held that the judge abused his discretion in admitting this 2nd urinalysis.  The court said that evidence of an unlawful substance in the urine at a time before the charged offense can not be used to prove knowledge, and evidence of an unlawful substance in the urine after the charged offense and not connected to the charged offense may not be used to prove knowing use on the charged date.

United States v. Outin, 42 M.J. 603 (N.M.Ct.Crim.App. 1995).  Accused convicted of maiming eight-week-old step daughter by immersing in scalding liquid.  Court found error, though harmless, when trial counsel presented rebuttal character evidence, even though accused never placed his character at issue.

When Character is in Issue:  Character is rarely an element of a crime, claim or defense, e.g. evidence of the accused’s predisposition to sell drugs in an entrapment defense, or the character of the victim in a criminal defamation action.  Such evidence escapes the general proscription against character evidence because it is not offered to prove conformity, but because of the significance of the trait in relation to the crime.  Where character is “an essential element of the offense or defense,” proof may be made by means of opinion or reputation evidence or specific instances of a person’s conduct.  Mil. R. Evid. 405(a) and (b).

United States v. Schelkle, 47 M.J. 110 (1997) (character not essential element of good soldier defense such that proof may be made by reference to specific acts of conduct).

United States v. Keiser, 57 F.3d 847 (9th Cir.), cert. denied, 116 S. Ct. 676 (1995).  Proper to exclude specific acts evidence of victim’s character, offered by defense to prove he was acting in response to attack by the victim.  While defendant has right under 404(a)(2) to show alleged victim was an angry and violent person, as victim’s character not essential element of self-defense claim, proof limited to reputation and opinion testimony under MRE 405.  Additionally, note that defendant’s personal knowledge of victim’s propensity to violence not a prerequisite to admissibility.