§ 10.03 Methods of Proof: FRE 405

• Jurisdiction: North Carolina

§ 10.03 Methods of Proof: FRE 405

Rule 405 specifies the methods of proving character. It governs how character may be proved but not when. In theory, there are three methods of proof: (1) reputation, (2) opinion, and (3) specific acts. For example, if you wanted to determine somebody's honest character at law school, you could (1) ask about that person's reputation for honesty, (2) ask someone who knows that person well (opinion), or (3) ask about that person's conduct—e.g., person found a wallet filled with money and returned it to the owner. There is a hierarchy working here. Because of numerous specific acts, other people form opinions, and collective opinions become reputation. Although specific acts may be the most probative, this method of proof takes the most time and carries with it the potential for distraction. If a party contests the specific act, there may be counterproof and a "trial within a trial." For this reason, such evidence is generally prohibited. In contrast, reputation and opinion evidence can be introduced without consuming much time.

[A] Reputation Evidence

If character is admissible pursuant to Rule 404(a)(2)(A) (accused's character) or Rule 404(a)(2)(B) (victim's character), Rule 405(a) provides that reputation evidence may be used to prove that character. Reputation is not synonymous with character; it is only one method of proving character.¹⁰

Foundational requirements. The offering party must lay an adequate foundation, establishing the witness's qualifications to testify about a person's reputation in the community—i.e., where that person lives, works, or goes to school.¹¹ "A reputation may grow wherever an individual's associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability."¹² Furthermore, it is knowledge of the accused's or victim's reputation at the time of the charged offense (not the time of trial) that is relevant for this purpose.¹³

[B] Opinion Evidence

If character is admissible pursuant to Rule 404(a)(2), opinion evidence may also be used to prove that character. Thus, a witness who is sufficiently acquainted with the accused or with the victim may give a personal opinion about that person's character.¹⁴This testimony expands the common law, which permitted only reputation evidence.¹⁵

Foundational requirements. As with reputation evidence, the offering party must qualify the character witness by laying...