Rule 405 Methods of proving character. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct. [L 1980, c 164, pt of 1; gen ch 1985]

 

RULE 405 COMMENTARY

 

This rule, which is identical with Fed. R. Evid. 405, establishes the methods by which character may be proved. Before this rule may be invoked, the question of substantive admissibility of character evidence must be decided according to Rule 404. Nor is this rule exclusive. When proving the character of sex assault victims, Rule 412 governs; and when attacking the credibility of witnesses, Rules 608, 609, and 609.1 govern.

Subsection (a): Although specific instances of conduct may be more probative on the issue of character than either opinion or reputation, this rule follows "conventional contemporary common law doctrine," see Advisory Committee's Note to Fed. R. Evid. 405, in rejecting this mode of proof in the usual case where, under Rule 404(a), character evidence is offered circumstantially. The reason is that specific conduct, although probative, offers the greatest danger of creating prejudice, arousing juror hostility, confusing the issues, and wasting time; therefore, this method of proof is allowable only on cross-examination of an opinion or reputation witness.

Hawaii courts have admitted reputation evidence as proof of character, State v. Clyde, 47 H. 345, 388 P.2d 846 (1964). However, such reputation evidence may be excluded if the court determines that the witness has insufficient knowledge of the party's reputation, State v. Faafiti, 54 H. 637, 642-43, 513 P.2d 697, 701-02 (1973):

Evidence of the defendant's reputation in the community in which he lives and works has long been recognized as admissible, but only where the witness is thoroughly familiar with the general consensus of the relevant community.... Both defendant and witness must have been members of the relevant community for a period of time sufficient to permit slow development of an accurate impression of character.... The appropriate length of time varies with the individual, the community, and the relevant character trait. Hence, the period of time must be determined in the discretion of the trial judge.

The Faafiti court was urged to depart from the traditional rule limiting proof of character to reputation evidence, and to "adopt a rule [similar to Fed. R. Evid. 405] that makes admissible personal opinion testimony as to the accused's character." 56 H. at 644, 513 P.2d at 702. The court did not decide this issue, but commented that an opinion testimony witness should have sufficient personal acquaintance with the individual in question to be able to form an opinion on character. This rule follows Fed. R. Evid. 405 in admitting opinion testimony as to character.

Subsection (b): Where character is "in issue" as an essential element of the action, see the commentary to Rule 404 supra, inquiry into specific conduct on direct examination of a character witness is permitted because of the need for a more "searching inquiry" in this type of case. See the Advisory Committee's Note to Fed. R. Evid. 405.

 

Case Notes

 

Victim's character not raised on direct, therefore cross-examination with regard to specific instances of conduct was properly restricted. 819 F.2d 227 (1987).

Character evidence regarding one's disposition to exert undue influence is admissible in a will contest where the contestant has alleged undue influence, only insofar as it tends to show that undue influence was in fact operative at the time of the will's execution--that undue influence was exerted over the testator/testatrix at the execution of and resulted in the challenged will. 90 H. 443, 979 P.2d 39 (1999).

Specific instances of defendants' violent or belligerent acts not admissible where their alleged violent and aggressive character was not an essential element of claim of assault and battery or defense of self-defense. 6 H. App. 505, 729 P.2d 388 (1986).

 

 

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