RULE 405. METHODS OF PROVING CHARACTER
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.
(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's 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.
(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
Rule 402 was amended, effective March 1, 1990; ________________.
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.
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.
Rule 402 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee
: of___________________; March 24-25,
1988, page 12; December 3, 1987, page 15; April 8, 1976, page 22; October 1, 1975, page
3. Rule Fed.R.Ev. 405 , Federal Rules of
Evidence; Rule 405, SBAND proposal.
Rule N.D.R.Ev. 404 , NDREv
(Character Evidence; Crimes or Other