Relevancy and reasons for excluding relevant evidence - Meth...

Learning Outcomes

This article explains the permissible methods for proving a person's character or character trait under the Federal Rules of Evidence when character evidence is admissible, including:

• Identifying which methods of proof—reputation, opinion, or specific instances of conduct—are available on direct and cross‑examination in common civil and criminal exam scenarios.
• Distinguishing character offered as circumstantial evidence of conduct from character that is an essential element of a charge, claim, or defense, and mapping each situation to the correct subsection of FRE 405.
• Analyzing cross‑examination of character witnesses, including proper “have you heard” and “did you know” questions, the good‑faith basis requirement, and the prohibition on extrinsic evidence of specific acts to contradict character testimony.
• Differentiating the use of specific‑acts evidence under FRE 405 from specific‑act evidence admitted for non‑propensity purposes under FRE 404(b) (MIMIC) and from character evidence offered solely to impeach a witness under FRE 607–609.
• Evaluating when character is genuinely “in issue” (such as defamation truth defenses, negligent entrustment or hiring, child custody, and certain entrapment frameworks) so that specific instances of conduct may be proved on direct examination under FRE 405(b).

MBE Syllabus

For the MBE, you are required to understand the specific ways character evidence can be introduced once its admissibility has been established, with a focus on the following syllabus points:

• The general prohibition against character evidence to prove conformity therewith (FRE 404(a)).
• Situations where character evidence is admissible (e.g., character as an essential element, mercy rule in criminal cases, certain sexual‑assault/child‑molestation statutes).
• The specific methods allowed by FRE 405: reputation testimony, opinion testimony, and specific instances of conduct.
• When each method of proof is permissible on direct and on cross‑examination.
• The rules governing cross‑examination of character witnesses regarding specific acts, including the good‑faith basis requirement and the “take the answer” rule.
• How FRE 404(b) allows specific acts for non‑propensity purposes (MIMIC—Motive, Intent, absence of Mistake, Identity, Common plan or scheme).
• Distinguishing character evidence offered to prove conduct (FRE 404/405) from character evidence used to impeach a witness’s credibility (FRE 607–609).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a civil case for defamation where the defendant claims truth as a defense, alleging the plaintiff is a dishonest person, how may the defendant prove the plaintiff's character for dishonesty?
   1. Only through reputation testimony.
   2. Only through opinion testimony.
   3. Through reputation, opinion, or specific acts evidence.
   4. Only through specific acts evidence.
2. A defendant in a criminal assault case calls a witness to testify that the defendant has a reputation in the community for peacefulness. On cross-examination, which question is most likely permissible for the prosecutor to ask this witness?
   1. "Did you know that the defendant was arrested for battery last year?"
   2. "Have you heard that the defendant was suspended from school for fighting five years ago?"
   3. "In your opinion, is the defendant a violent person?"
   4. "Were you aware that the defendant owns several firearms?"
3. Under FRE 405, specific instances of a person's conduct may be used to prove character:
   1. Whenever character evidence is admissible.
   2. Only on cross-examination of a character witness.
   3. Only when character is an essential element of a charge, claim, or defense.
   4. Never; specific acts are only admissible for non-propensity purposes under FRE 404(b).

Introduction

Federal Rule of Evidence (FRE) 404(a) generally prohibits the introduction of evidence concerning a person's character or character trait for the purpose of proving that the person acted in conformity with that character on a particular occasion. The policy concern is that juries may give excessive weight to “he’s a bad person” reasoning, creating unfair prejudice and distracting from the specific events the case is about.

Key Term: Character Evidence
Evidence about a person’s general disposition or character trait (e.g., honesty, peacefulness, carefulness) offered to show either that the person is that type of person or that the person acted consistently with that trait on a particular occasion.

Although character evidence is usually excluded when offered to show conduct in conformity, FRE 404(a) contains important exceptions. In those situations—such as when a criminal defendant invokes the “mercy rule” to prove good character, or when character itself is an element of a claim or defense—the evidence is admissible. Once you are in a scenario where character evidence can come in, FRE 405 controls how that character can be proven.

Key Term: Character Witness
A witness who testifies about another person’s character or a specific character trait, typically by describing reputation in a community or giving a personal opinion about that trait.

Understanding the permitted methods of proving character is a classic MBE issue. Fact patterns often combine admissibility (FRE 404) and method-of-proof (FRE 405) questions, so you must separate two steps:

1. Is character evidence admissible at all? (FRE 404 & any special statutes)
2. If yes, what form of proof is permitted? (FRE 405)

This article focuses on step 2.

Key Term: Essential Element of a Charge, Claim, or Defense
A fact that must be proven under the substantive law to establish liability, guilt, or a defense—such that the character trait itself (e.g., truthfulness, carefulness, fitness as a parent) is part of the legal test.

Purposes of Character Evidence

Character evidence may appear in three broad roles:

• Character “in issue” / as an essential element (e.g., plaintiff’s honesty in a defamation–truth defense; driver’s competence in negligent entrustment; parental fitness in child custody).
• Character offered circumstantially to suggest conduct in conformity (e.g., criminal defendant introduces peaceful character to suggest he did not commit a violent assault).
• Character to impeach credibility (character for truthfulness under FRE 607–609; this is formally a different topic, though it uses some of the same methods of proof).

FRE 405 deals with the first two categories—substantive character evidence—not impeachment.

Key Term: Mercy Rule
The special criminal rule (FRE 404(a)(2)(A)–(B)) allowing a defendant to offer evidence of the defendant’s own relevant character trait, or the victim’s relevant trait, to suggest conduct in conformity; the prosecution may then rebut.

Once an exception like the mercy rule or “character in issue” makes character admissible, FRE 405 governs reputation and opinion testimony, specific acts, and what may be asked on cross-examination.

Methods of Proving Character Under FRE 405

FRE 405 provides three distinct methods for proving character when character evidence is admissible:

• Reputation testimony
• Opinion testimony
• Specific instances of conduct

The methods available depend primarily on why the character evidence is being offered.

Reputation or Opinion Testimony (FRE 405(a))

When evidence of a person’s character or character trait is admissible (typically under a FRE 404(a) exception), FRE 405(a) states that proof must be made by testimony about the person’s reputation or by testimony in the form of an opinion—unless character is an essential element (discussed later).

Key Term: Reputation Evidence
Testimony describing the general reputation of a person for a particular trait among a relevant group—such as neighbors, co‑workers, or members of a school or church community.

Key Term: Opinion Evidence
Testimony in which the witness expresses a personal judgment about another person’s character trait, based on sufficient personal acquaintance or experience.

Under FRE 405(a), these are the default forms of proof whenever character is being used circumstantially (for propensity)—for example, when a criminal defendant wants to show that he has a reputation for honesty or peacefulness to suggest he did not commit the charged crime.

Key points for reputation/opinion testimony:

• Basis: The proponent must show the character witness:
  • Knows the subject person well enough to form an opinion, or
  • Is familiar with the person’s reputation in a relevant community.
• Scope on direct: On direct examination, the witness is limited to:
  • Stating the person’s reputation for the specific trait at issue; and/or
  • Giving an opinion about that trait.
    The witness may not describe specific instances of conduct on direct.

On the MBE, if a character witness starts describing “the time he did X, and the time he did Y” on direct to prove character, that violates FRE 405(a) unless you are in the special FRE 405(b) situation.

Cross-Examination of Character Witnesses (FRE 405(a))

Once a character witness has given reputation or opinion testimony, FRE 405(a) allows the opposing party, in the court’s discretion, to test the witness’s credibility and the basis of that testimony by asking about specific instances of conduct relevant to the trait testified to.

Key Term: Specific Acts Evidence
Evidence of particular past actions of a person offered to show that the person has or lacks a character trait (e.g., prior fights to show violence, prior lies to show dishonesty).

The classic cross‑examination questions are:

• “Have you heard that the defendant ___?” (reputation witness)
• “Did you know that the defendant ___?” (opinion witness)

The goals are to test whether:

• The witness actually knows the person’s reputation; and
• The witness has a reasonable basis for the favorable opinion.

Limitations on cross about specific acts:

• The act must be relevant to the trait the witness has put at issue (e.g., violence for a peacefulness trait; theft or fraud for honesty).
• Counsel must have a good‑faith basis to believe the act occurred—some credible information, not mere speculation.
• No extrinsic evidence is allowed to prove that the specific act occurred:
  • The cross‑examiner is “stuck with the answer.”
  • If the witness denies knowledge of the incident, the examiner cannot introduce police reports, other witnesses, or documents solely to prove that act happened, when the only purpose is to attack the character testimony.

This “no extrinsic evidence” rule is heavily tested. It applies when the specific-act question is directed at the character witness solely to test the character testimony, not when the specific act is independently relevant under another rule (e.g., bias, 404(b) MIMIC, or to show something other than general character).

Worked Example 1.1

Defendant (D) is on trial for embezzlement. D calls Witness (W) to testify that D has a reputation in their workplace as an honest person. On cross-examination, the Prosecutor (P) asks W, "Have you heard that D was fired from his previous job for falsifying expense reports?" Is this question permissible?

Answer:
Yes. W has testified about D's reputation for honesty, a directly relevant trait in an embezzlement case. P may ask about a specific instance—firing for falsifying expense reports—that is clearly related to honesty, to test W’s knowledge of D’s reputation and the basis of the testimony. P must have a good‑faith basis for believing the firing occurred. If W answers “No, I’ve never heard that,” P must accept the answer and may not introduce extrinsic proof of the firing just to contradict W.

Worked Example 1.2

In an assault trial, Defendant calls a co‑worker to testify, “In my opinion, Defendant is a very peaceful person.” On cross, the prosecutor asks, “Did you know that Defendant got into a bar fight last year and broke another patron’s nose?” The defense objects that this is improper character evidence. How should the court rule?

Answer:
Overrule the objection. The defense opened the door by offering opinion testimony that Defendant is peaceful. On cross‑examination, FRE 405(a) allows inquiry into relevant specific instances of Defendant’s conduct—here, a bar fight—to test the accuracy of the witness’s opinion. The question is permissible if the prosecutor has a good‑faith basis for it; however, if the witness denies knowledge, no extrinsic evidence can be offered solely to prove the bar fight occurred.

Direct vs. Cross: Why the Difference

The rules are more restrictive on direct examination because specific-act testimony is time‑consuming, risks mini‑trials about collateral events, and magnifies unfair prejudice. On cross‑examination, limited questions about specific acts are more sharply focused on testing the witness, not on proving the specific act as a substantive fact.

This is also why the bar on extrinsic proof is so strict: once you let the parties prove or disprove every rumor mentioned on cross, trials quickly devolve into side‑issues about who did what years ago.

Specific Instances of Conduct (FRE 405(b))

Proof by specific instances of conduct is the least common method for proving character and is only available in narrow situations. FRE 405(b) provides that when a person’s character or character trait is an essential element of a charge, claim, or defense, the character may be proved by:

• Relevant specific instances of conduct, as well as
• Reputation or opinion testimony.

In other words, when character is itself legally operative, all three methods are allowed on direct.

Common examples where character is an essential element:

• Defamation (truth defense): The allegedly defamatory statement asserts a trait, such as “P is a thief” or “P is dishonest.” If the defendant pleads truth as a defense, the plaintiff’s character for honesty becomes an element of the defense.
• Negligent entrustment or negligent hiring: The entrusted or hired person’s dangerous or careless character (and the entrustor’s knowledge of it) is central to liability.
• Child custody: Parental fitness or character as a parent is part of the legal standard for custody decisions.
• Entrapment (in some jurisdictions): The defendant’s predisposition to commit the crime may be treated as an element of the entrapment defense.

By contrast, in a typical criminal case (like robbery or assault), character is not an element of the offense or any affirmative defense; it is merely circumstantial evidence, so you are in 405(a), not 405(b).

Worked Example 1.3

Plaintiff (P) sues Defendant (D) for defamation, alleging D called P a "cheat." D asserts truth as a defense. Can D introduce evidence that P cheated on his taxes five years ago?

Answer:
Yes. In a defamation action where truth is asserted as a defense, the plaintiff’s relevant character trait (here, honesty/dishonesty) is an essential element of the defense. Under FRE 405(b), D may prove that trait with specific instances of P’s conduct, such as tax cheating, in addition to reputation and opinion evidence.

Worked Example 1.4

A trucking company is sued for negligent hiring after its driver (X) causes a serious accident. The plaintiff alleges the company knew or should have known X was a reckless driver. May the plaintiff offer evidence that X had three prior at‑fault accidents and two speeding convictions?

Answer:
Yes. In negligent hiring, X’s character for carefulness (or lack thereof) is an essential element of the claim. FRE 405(b) permits proof of that character by specific instances of conduct—here, prior accidents and speeding convictions—on direct examination, as well as by reputation or opinion testimony.

Do Not Overread FRE 405(b)

FRE 405(b) is narrow. Character is not an essential element simply because it seems highly relevant. For example:

• In a self‑defense case, evidence that the victim was violent may be very helpful, but the legal test for self‑defense does not require proof of the victim’s general character; it requires proof of what reasonably appeared to the defendant at the time. The victim’s violence is circumstantial, not itself an element.
• In an ordinary negligence case, the question is whether the defendant behaved reasonably on the occasion in question, not whether the defendant is a generally careful or careless person. Character is not an element.

In those cases, you are still in 405(a): reputation/opinion on direct, limited specific‑act questions on cross.

Distinguishing FRE 405 from FRE 404(b) (MIMIC)

A frequent MBE trap is confusing the use of specific acts to prove character (FRE 405) with specific acts to prove non‑propensity facts (FRE 404(b)).

Key Term: Non-Propensity Purpose
A permissible purpose for using past acts that does not rest on a character‑conformity inference, such as showing motive, intent, absence of mistake, identity, or common plan.

Key Term: MIMIC
Acronym summarizing common non‑propensity purposes under FRE 404(b): Motive, Intent, absence of Mistake, Identity, or Common plan or scheme.

Under FRE 404(b):

• A party may offer specific acts for MIMIC purposes even when character is not an essential element.
• The acts are not governed by FRE 405’s restriction to reputation/opinion; they come in as direct evidence of those non‑propensity facts.
• The court must still perform a FRE 403 balancing and, on request, give a limiting instruction.

Exam Warning

Do not confuse:

• Specific acts under FRE 405(b): Used to prove character itself when character is an element (e.g., “P is a liar,” “X is a careless driver”), with reputation/opinion also available.

with

• Specific acts under FRE 404(b): Used to prove some other fact (MIMIC) such as intent, identity, or absence of mistake, even though they may incidentally suggest a character trait.

For example, in an arson case, prior fires set by the defendant might be admissible to show a common plan or identity (404(b)), but that is not character evidence under 405.

Character Evidence in Civil Cases: Methods of Proof

In civil cases, the threshold admissibility rule is stricter: character evidence to prove conduct in conformity is generally inadmissible, with narrow exceptions (such as defamation, negligent entrustment/hiring, and child custody) where character is in issue.

When you are in one of those exceptions, FRE 405 applies as follows:

• If character is in issue (essential element):
  • Reputation, opinion, and specific acts are all permitted (405(b)).
• If character is relevant only circumstantially (rare in civil cases under the FRE):
  • Reputation and opinion are the primary methods (405(a)); specific acts on cross may be allowed to test character testimony.

Criminal Cases and the Mercy Rule: Methods of Proof

In criminal cases, FRE 404(a)(2) (the mercy rule) allows:

• The defendant to introduce evidence of the defendant’s own relevant character trait (e.g., honesty in a fraud trial, peacefulness in a homicide trial).
• The defendant to introduce evidence of the victim’s relevant character trait (e.g., violence in a self‑defense case).
• The prosecution to rebut that character evidence, and in a homicide case to offer evidence of the victim’s peacefulness to rebut self‑defense.

When those doors are opened:

• On direct, both sides are limited to reputation and opinion testimony about the relevant trait (405(a)).
• On cross, both sides may inquire into relevant specific instances of conduct, subject to the good‑faith basis requirement and the bar on extrinsic evidence.

Importantly, if the defendant simply takes the stand and testifies to the facts, that does not by itself open the door to bad‑character evidence for propensity. It may open the door to impeachment under FRE 608–609 (also using opinion, reputation, and certain specific acts or convictions), but impeachment is a distinct doctrine.

Key Point Checklist

This article has covered the following key knowledge points:

• Character evidence to prove conduct in conformity is generally inadmissible under FRE 404(a), subject to specific exceptions (e.g., mercy rule, character in issue).
• When character evidence is admissible, FRE 405 governs the methods of proof.
• Under FRE 405(a), the primary methods are reputation and opinion testimony, typically used when character is offered circumstantially (propensity).
• On cross‑examination of a character witness, the court may allow inquiry into specific instances of conduct relevant to the trait testified about, but:
  • The cross‑examiner must have a good‑faith basis.
  • The cross‑examiner must “take the answer” (no extrinsic evidence to prove or disprove the act solely to attack the character testimony).
• Under FRE 405(b), when character is an essential element of a charge, claim, or defense, it may be proved on direct by specific acts, as well as by reputation or opinion.
• Civil scenarios where character is an essential element include defamation (truth defense), negligent entrustment/hiring, and child custody; criminal scenarios are rare.
• Specific‑act evidence may also be admitted under FRE 404(b) for non‑propensity purposes (MIMIC), which is conceptually distinct from using specific acts to prove character under FRE 405.
• In criminal cases under the mercy rule, the defendant (and sometimes the prosecution) may offer character evidence, but on direct that evidence must be in reputation or opinion form; specific acts are confined to cross‑examination.
• Do not confuse character evidence used to prove conduct (FRE 404/405) with character evidence used to impeach credibility (FRE 607–609), which is governed by separate rules even though similar methods (reputation, opinion, specific acts, convictions) are used.

Key Terms and Concepts

• Character Evidence
• Character Witness
• Mercy Rule
• Reputation Evidence
• Opinion Evidence
• Specific Acts Evidence
• Essential Element of a Charge, Claim, or Defense
• Non-Propensity Purpose
• MIMIC