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Rule 405. Form of proof
- Rule 405 is best understood as a rule that governs “how” a proponent may prove character or a character trait, not “whether” they may prove a particular character or character trait. The rule applies in those situations where “character is in
issue” (likely only entrapment cases) and in certain instance of allowable character evidence under Rule 404(a)(1) (character of the accused), Rule 404(a)(2) (character of the alleged victim) and Rule 608 (character of a witness).
- Rule 405 DOES NOT APPLY to the following:
- Propensity Inferences under Rule 404(a). Since this use of character evidence is prohibited, there is no acceptable form of proof to introduce the character evidence.
- Nonpropensity purpose under Rule 404(b). If one of the stated purposes
of introduction under Rule 404(b) (KIPPOMIA – Knowledge, Intent,
Plan, Preparation, Opportunity, Motive, Identity, or Absence of mistake)
or any other non-character basis is offered for introduction of the
evidence, then Rule 405 does not apply. Under Rule 404(b), relevancy
does not depend upon conclusions about a person’s character.
- Habit under Rule 406. Habit evidence is not treated as character
evidence and as such, is exempted from Rule 405.
- Evidence of victim’s traits under Rule 412. This rule allows the
government or defense, in specific relatively rare instances, to use
character evidence. Rule 405 does not govern the method of proof.
Under Rule 412, if character evidence is allowed, it may only be proven
by extrinsic specific acts.
- Evidence of similar crimes under Rules 413 and 414. These rules are
exempted from 405. Under Rules 413 and 414, the accused’s sex-related
traits in sex offense or child molestation cases may be proven by
reputation, opinion, or extrinsic specific acts.