The Formula for Proving Character

By Monte E. Hester; Dec 2000

      On numerous occasions I have observed failed attempts in offering reputation evidence at trial.  The rules do not set out the formula.  However, the courts have addressed the issue on numerous occasions.

     In Washington, under Evidence Rule 405, the witness must be inquired of very precisely.  The rule requires that the witness be asked if he knows what the reputation of the defendant is in the community in which the defendant resides for a particular character trait, such as peacefulness or truthfulness and honesty.  If the witness says “yes”, then the only question that is allowed is: “What is it, good or bad?”  That ends the inquiry.

     Most likely it will have been necessary for the  proponent of the reputation testimony to have established the admissibility of such evidence outside of the presence of the jury.  Such a hearing involves establishing the relevance of the particular character trait and the foundation of the witness’s knowledge of the reputation.

     The Federal Rule of Evidence 405 varies from the State rule.  By its terms, evidence of character or a trait of character, if admissible, may be by testimony as to reputation or by testimony in the form of an opinion.  The rule under (b) provides that in cases where character or a trait of character of a person is an essential element of the charges, claims or defense, proof may also be made of specific instances of that person’s conduct.

     The formula for reputation in federal court is the same as in state court.  The formula for opinion permits a focused inquiry wherein the witness is asked foundationally if he knows the defendant, how long he has known him, and has he had personal contacts with the defendant?  Subsequently, the witness is asked if he has an opinion of the defendant’s character trait of peacefulness or honesty, etc. and, if so, is his opinion of the defendant for the particular stated character trait good or bad?

     The witness may not be asked, nor give testimony, about the specific acts or conduct of the defendant upon which the opinion is based.

     Again, the tactic is risky because cross-examination is generally permitted into relevant specific instances of past conduct.

     The downside to the use of character witnesses is that the prosecution will have the opportunity to cross-examine the “reputation” witness by asking questions about knowledge or the lack thereof regarding specific instances of misconduct, including criminal history that otherwise may have been inadmissible.  Obviously, one needs to be very careful in deciding the use of reputation testimony.