(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 crossexamination, 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 his conduct.

ELEMENTS

A. When character evidence is admissible, it may be proved by:

1. Reputation.

2. Opinion.

COMMENTS

3. Specific instances of conduct may be inquired into.

a. Only on cross-examination.

b. Unless character trait is element of claim, charge,

or defense.

This rule changes the traditional approach to proving character by allowing the witness to state his opinion of the party's character. Additionally, it allows the witness to testify relative to specific acts. In the past, the witness could only state whether he had heard anything about the person's reputation relative to truth and veracity or peace and good order in the community in which he lived. This was very awkward in that a person rarely discussed the above character traits of an individual with people in the community. Consequently, the witness invaribly attempted to give his personal opinion, which was not admissible, rather than expressing the reputation the individual had in his community.

Counsel:

ILLUSTRATION

Mr. X, have you had conversations with people in the community relative to Y's reputation for truth and veracity?

X:

Yes.

Counsel:

What is his reputation for truth and veracity?

X: They say he is a truthful person.

The problem with the above exchange is that when X is cross-examined about how he came to discuss Y's reputation, where he discussed it, the circumstances surrounding the conversation and with whom the conversation was

had, it invaribly would result in a finding that X merely gave the court his opinion. Moreover, it was difficult to keep the witness confined to testifying about truth and veracity and peace and good order. This is especially true where the witness would, in response to a question regarding truth and veracity, reply that he believed the person to be honest, or that everyone liked him.

While the new rule allows the witness to give his personal opinion about the person and thereby avoid the games which were played in the past, it is not without its liabilities. It will be difficult to undercut fabricated

testimony relating to character.

For example, where the witness states that

the defendant never lied to him and he has always known him to tell the truth, how will the cross-examiner be able to de-fuse that bombshell testimony when the witness refuses to admit to knowing anything adverse about his relationship to the defendant.

The only string in the cross-examiner's bow is that he may inquire into specific instances of misconduct by the individual which could cast him in a bad light. However, where the defendant is a first offender or a pillar of the community, inquiring into specific instances of misconduct will not be helpful. You must keep in focus the fact that the witness would not be testifying on behalf of the person unless they regarded him highly.

ILLUSTRATION

During the course of his trial for bribery in connection with the Milk fund case, Governor John Connally called Representative Barbara Jordan to testify as a character witness in his behalf. The case was heard before a predominantely black jury and Representative Jordan was a black Congresswoman. Governor Connally was known for his rather conservative style and it

was believed that of the character witnesses that testified on his behalf, Representative Jordan was the one most likely to provide the damaging tidbit of testimony.

When questioned concerning her personal views of Governor Connally, Representative Jordan replied that while they had had their differences politically and philosophically, Governor Connally had never demonstrated himself to be anything but a man of integrity. Of all the character testimony delivered on behalf of Connally (Billy Graham and Lady Bird Johnson, etc.), this was the most beneficial.

The new rule facilitates the ease with which character testimony may be offered. It also codifies the right of the cross-examiner to inquire into specific instances of conduct.

405(a) (b) Virgin Is. v. Rolidan 612 F.2d 775 (1979)

3rd

RULE 406

HABIT; ROUTINE PRACTICE

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence