Rule 405. Methods of Proving Character

  1. militarydefenselawyers371Rule 405(a) limits a proponent of character evidence to proving it either through using reputation or opinion testimony. A proponent is generally not allowed to elicit testimony regarding specific instances of conduct (unless character is an essential element of an offense or defense – discussed in detail below).
    1. Reputation evidence is information that a witness knows about an individual from having heard discussion about the individual in a specified community. Rule 405(d) lists several permissible examples of a “community.” See United States v. Reveles, 41 M.J. 388 (1995) (for purposes of reputation testimony, “community” broadly defined to
      include patrons at officer’s club bar).
    2. Opinion evidence is a witness’s personal opinion of an individual’s
      character. From a practical standpoint, the impact of this evidence,
      depends greatly upon the individual giving it.
    3. On cross-examination of a character witness, inquiry is allowable into
      relevant instances of conduct (discussed in greater detail below).
  2. Mechanically, the proponent demonstrates reputation/opinion/specific instances
    character evidence by showing the following that an individual has a particular
    character trait; the witness has an opinion about the trait, or is familiar with the
    person’s reputation concerning that particular trait, or can testify concerning
    specific acts relevant to the trait; AND the witness states an opinion, relates the
    reputation, or, under very limited circumstances, testifies about specific instances
    of conduct relevant to trait in issue.
  3. Cross-Examining a Character Witness
    1. The witness giving the reputation or opinion testimony is subject to
      impeachment by relevant specific instances of conduct. Rule 405(a).
      The rule in practice tends almost exclusively to be used by the
      government; however, it applies equally to both trial and defense
      counsel. This method is obviously a very effective way of testing a
      witness’s opinion or reputation knowledge. If the witness admits hearing
      or knowing of the act, the trier of fact may discredit their testimony. If
      the witness denies having heard or knowing of the act, the trier of fact
      may question how well the witness knows the individual or the
      individual’s reputation.
    2. Counsel may inquire about specific instance of conduct by asking “Have
      you heard” or “Do you know” questions. Prior to asking any such
      question, however, the counsel must have a good faith belief. United
      States v. Pruitt, 43 M.J. 864 (A.F. Ct. Crim. App. 1996). The opponent
      to such inquiry may require the proponent to state their good faith belief
      by way of a motion in limine.
    3. The witness either knows of the specific instances of conduct or they do
      not. The counsel asking the question is stuck with the witness’s
      response. United States v. Robertson, 39 M.J. 211 (C.M.A. 1994), cert.
      denied, 115 S. Ct. 721 (1995). This is true since the purpose of the
      specific instance of conduct is to test the basis of the witness providing
      the character evidence.
    4. When cross-examining on specific instances of conduct, the focus should
      be on the underlying conduct and not the government action taken in
      response to the underlying conduct. For example, 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.
    5. Timeliness of Acts – Rule 405(a) is concerned with character at the time
      of the charged offense. Under the rule, any cross-examination should be
      limited to acts that would have occurred prior to the offense charged,
      because the court wants to test character at that time. Thus, it is
      improper to ask a character witness whether the charges brought in the
      case have affected reputation or their opinion. United States v. Brewer,
      43 M.J. 43 (1995) (although not objected to, the court held that counsel
      are not permitted to test the basis of a witness’ character opinion by
      using the charged offense).
  4. Under Rule 405(b), specific instances of conduct are allowed in cases where
    character or a trait of character of an individual is an essential element of an
    offense or defense. Character is rarely an essential element of an offense or
    defense. An example of when character would be an essential element of an
    offense or defense is in a court-martial where the defense to purchasing illegal
    drugs is entrapment. Either the government or defense would be permitted to
    offer character evidence regarding the predisposition to purchase illegal drugs.
    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. Rule 405(a) and (b).

    1. United States v. Schelkle, 47 M.J. 110 (1997) (character is not an
      essential element of good soldier defense such that proof may be made
      by reference to specific acts of conduct).
    2. United States v. Dobson, 63 M.J. 1 (2006). May evidence of specific
      acts of violence by an alleged victim, known to the accused, be admitted
      into evidence on the issue of the accused’s intent? Yes. Although the
      military judge correctly prevented the defense from using specific acts
      under Rule 405 to prove character of the accused, the military judge
      erred by not admitting the evidence to show the appellant’s state of mind
      at the time of the victim’s death. Under Rule 405, a relevant character
      trait may only be admitted by reputation or opinion testimony, unless the
      character trait is an essential element of an offense or defense. The
      military judge determined that although the victim’s character for
      violence could be proved by opinion or reputation evidence, specific acts
      by the victim were not admissible because the character trait for violence
      was not an essential element of the self-defense claim. The CAAF held
      the military judge erred when he did not address the question of whether
      evidence of specific acts of violence known to the appellant were
      admissible on the issue of the appellant’s intent. Since the government
      lacked any direct evidence on premeditation, the prohibited testimony
      was material. With no direct evidence of intent, the panel could have
      accepted all of the government’s evidence pointing to the appellant as the
      perpetrator of the murder, but still have a reasonable doubt as to whether
      she premeditated the murder in light of the impact of abuse on her intent.
      Under these circumstances, the CAAF could not be confident that the
      error of excluding the testimony of the defense’s two witnesses was
      harmless on the issue of premeditation. The findings as to premeditated
      murder and sentence were reversed.
  5. Rule 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. The rule
    permits the government to make use of similar evidence in rebuttal.

    1. This use may have Sixth Amendment difficulties under Crawford v.
      Washington, 541 U.S. 36 (2004).
    2. United States v. Lowe, 56 M.J. 914 (N-M Ct. Crim. App. 2002), the
      service court held that the military judge erred in allowing opinion
      testimony through the introduction of hearsay documents containing a
      “litany” of uncharged misconduct. The court went on to note that while
      Rule 405(c) relaxes the rules of evidence regarding hearsay concerning
      the form of such testimony, it does not relax the rules of evidence
      concerning the substance of such evidence. While the government
      counsel could have presented a written opinion under Rule 405(c)
      rebutting the opinion offered by the defense, it couldn’t use Rule 405(c)
      to admit extrinsic evidence of otherwise inadmissible uncharged
      misconduct to rebut the offered opinion.

Cross-Examining a Character Witness

When cross-examining on specific instances of conduct