Rule 405. Methods of Proving Character

(a) By reputation. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation. On cross-examination of the character witness, the court may allow an inquiry into relevant 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.

Committee Notes

Maine Restyling Note [November 2014] Existing Maine Rule 405 permits proof of character evidence only by reputation. This substantive difference between the Maine and Federal Rules is maintained in the restyled Rule.

Federal Advisory Committee Note The language of Rule 405 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisers' Note to former M.R. Evid. 405 (February 2, 1976) This rule covers the allowable methods of proving character once character evidence has become admissible under Rule 404. Proof may be made by testimony of reputation. This is in accord with Maine law. See Phillips v. Kingfield, 19 Me. 375 (1841); Bliss v. Shuman, 47 Me. 248 (1859); State v. Morse, 67 Me. 428 (1877). The rule does not follow the Federal Rule in allowing proof of character by the opinion of a witness. There is some justification for that approach, since the jury is likely to think that a witness who says that the defendant's reputation is good is in fact vouching for him. There is, however, the risk that wholesale allowance of opinion testimony would tend to turn a trial into a swearing contest between conflicting character witnesses. The last sentence of subdivision (a) allows inquiry on cross-examination into relevant specific instances of conduct. Inquiry of a character witness, "Have you heard . . ." of a certain event was permitted in the leading case of Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213 (1948), in which the trial court guarded the practice from misuse by ascertaining out of the presence of the jury that the question related to an actual event and was not a random shot or a groundless question to "wait an unwarranted innuendo into the jury box." There are no Maine cases on the point, but the practice seems a desirable one. Subdivision (b) allows inquiry into specific instances of conduct on direct examination when character is actually in issue; that is, when character or a character trait is an operative fact which under the substantive law determines the legal rights of the parties. This appears to be in accord with Maine law. Smith v. Wyman, 16 Me. 13 (1839).