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.



  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.



  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.