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.
Rule 405 deals only with the method of proving character, once the admissibility of the character evidence has been determined. The three methods approved by this rule are (1) reputation, (2) opinion, and (3) specific instances of conduct.
Of these three, evidence of a person's general reputation has been admissible to prove character in North Dakota, but there is some case law which implies that opinion evidence is not admissible.See State v. Nierenberg, 80 N.W.2d 104 (N.D. 1956). This rule abolishes the distinction between reputation and opinion evidence. Both are considered acceptable methods of proving character.This change has been advocated by commentators for some time, and is believed to reflect a more accurate view of the relative values of opinion and reputation evidence of character. As Wigmore has stated:
"The Anglo-American rules of evidence have occasionally taken some curious twistings in the course of their development; but they have never done anything so curious in the way of shutting out evidential light as when they decided to exclude the person who knows as much as humanly can be known about the character of another, and have still admitted the secondhand, irresponsible product of multiplied guesses and gossip which we term "reputation.' " VII Wigmore on Evidence 1986 at 167 (3d ed. 1940).
The third method of proving character, specific instances of conduct, is perhaps the most probative or revealing of the three, but it is also the most likely to create confusion or undue prejudice in the minds of triers of fact. For this reason, it is allowed only on cross-examination under subdivision (a), or under subdivision (b) in cases in which the character of a person is an essential element of a claim, charge, or defense. This use comports with present law. See McCormick on Evidence, 187.
Subdivision (b) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Minutes of Joint Procedure Committee: March 24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, page 22; October 1, 1975, page 3. Rule 405, Federal Rules of Evidence; Rule 405, SBAND proposal.
CROSS REFERENCE: Rule 404, NDREv.