703.5Proving Character [Rule 405]
- When character evidence is admissible, a person’s character may be proved through lay witness testimony about the person’s reputation or by opinion testimony.
- “Reputation” is the view of the person’s character held by an appreciable group of people who have an adequate basis to form an opinion. “Opinion” is the witness’s own view based on personal knowledge.
- A witness who has testified on direct about reputation or opinion may be cross-examined about specific instances of conduct.
- When character is an essential element of a charge or defense, character may be proved through evidence of specific instances of conduct.
The Basic Rule
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. Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.
(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.
- For more information on when character evidence is admissible, or which traits may be put in issue, see the related Evidence entry on Character Generally – Rule 404(a).
- For more specific information about impeaching the character of a testifying witness, see the related Evidence entry on Impeaching Witnesses: Evidence of Character and Conduct of Witness – Rule 608.
Three Methods of Proof
A person’s “reputation” is defined as the view of that person “held by an appreciable group of people who have an adequate basis upon which to form their opinion.” State v. McEachern, 283 N.C. 57 (1973); State v. Oliver, 85 N.C. App. 1 (1987). Before a witness may testify about a person’s reputation, the offering party must lay a proper foundation for the testimony – that is, there must be a showing that the testifying witness is familiar with an appreciable group of people who have an adequate basis upon which to form an opinion about the person’s reputation. See State v. Thaggard, 168 N.C. App 263 (2005); State v. Morrison, 84 N.C. App. 41 (1987); State v. Sidden, 315 N.C. 539 (1986).
If a proper foundation is laid, and assuming the character evidence is otherwise admissible and relevant, testimony about a person’s reputation is admissible as a hearsay exception. See G.S. 8C-803(21). Testimony about the absence of a reputation (e.g., that the witness has not heard about the person having a negative or unflattering reputation regarding a character trait) is also admissible. See State v. Martin, 322 N.C. 229 (1988).
Opinion testimony is very similar to reputation, except that it refers to the witness’s own opinion of the person’s character, rather than expressing the general view of the larger community. See, e.g., State. Watson, 338 N.C. 168 (1994) (defendant claiming self-defense may testify as to his opinion that victim had a violent character, if the defendant has a basis for holding such an opinion). The foundation required for opinion testimony is less rigorous than for reputation – the only prerequisite for opinion testimony is that it must be based on the witness’s personal knowledge. See G.S. 8C-701; State v. Hernandez, 184 N.C. App. 344 (2007); State v. Morrison, 84 N.C. App. 41 (1987).
No expert opinions
Reputation or opinion evidence regarding a person’s character may only be offered through lay testimony: “Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.” G.S. 8C-1 Rule 405(a); see G.S. 8C-608(a); State v. Jackson, 320 N.C. 452 (1987); State v. Aquallo, 318 N.C. 590 (1986); State v. Wise, 326 N.C. 421 (1990). This issue most often arises in cases involving child victims of sexual assaults, where an expert medical witness is asked to opine on whether the child victim is “truthful.” For more information, see the related Expert Testimony entry on Child Sexual Assault Exams.
Specific Instances of Conduct
In very limited circumstances (see Section C below), specific instances of conduct may be used as examples to demonstrate a person’s overall character or a character trait. The specific instance must be relevant to the trait at issue, and the proponent of the question must have a good faith basis for asking it. See State v. Warren, 327 N.C. 364 (1990); State v. Dawson, 302 N.C. 581 (1981) (good faith presumed unless the record shows bad faith); State v. Robertson, 55 N.C. App. 659 (1982) (burden on opponent of question to affirmatively show bad faith).
Extrinsic evidence of an alleged specific instance of conduct is generally not permitted. See State v. Morgan, 315 N.C. 626 (1986); State v. Russell, 91 N.C. App. 581 (1988); State v. Dixon, 77 N.C. App. 27 (1985); State v. Perry, 69 N.C. App. 477 (1984). “Extrinsic evidence” means evidence obtained by means other than examination or cross-examination of the witness (e.g., by introducing documents into evidence, or calling another witness to contradict the answers given by the current witness). See State v. Lee, 189 N.C. App. 474 (2008).
There is a limited exception that allows for the use of extrinsic evidence if it is both relevant under Rule 404(b) and admissible for the purpose of attacking a witness’s truthfulness under Rule 608(b). See State v. Bagley, 321 N.C. 201 (1987). For more information, see the related entry on Character and Conduct of a Witness – Rule 608.
When Each Method is Allowed
Character Evidence Flowchart
The permissible methods of proof depend on the purpose for which the evidence is being offered, and the particular rules of evidence being used to introduce it. For a helpful flowchart that summarizes when each of the various methods of proof are allowed, see Jessica Smith, “Character Evidence Cheat Sheet,” NC Superior Court Judges’ Benchbook, May 2013.
Reputation or Opinion
Whenever character evidence is admissible under the rules of evidence, it may always be proved by reputation or opinion testimony. G.S. 8C-405(a). See, e.g., State v. Bogle, 324 N.C. 190 (1989); State v. Watson, 338 N.C. 168 (1994).
As discussed throughout this entry, and in several other entries in this section, “character evidence” is admissible only under specific circumstances and for specific purposes, such as proving a relevant character trait of the accused or the victim under Rule 404(a). For more information, see the related Evidence entry on Character Generally – Rule 404(a). Character evidence also may be admitted to prove or disprove the truthfulness of a witness under Rule 608(a). For more information, see the related entry on Character and Conduct of a Witness – Rule 608.
Specific Instances of Conduct
Specific instances of conduct may be used to prove character only in the following limited circumstances.
- Essential Element
Evidence of specific instances to prove character is allowed if a character trait is an essential element of a charge, claim, or defense. See G.S. 8C-405(b). Unlike civil cases, where a person’s character might be an essential element of proving the person’s “fitness as a parent” or “loss of standing in the community,” character is almost never an essential element of a charge or defense in a criminal case.
One notable exception is when the defendant claims self-defense. Then the defendant may offer evidence of specific instances of conduct of which the defendant was aware that show the victim’s violent nature. Such evidence tends to establish that the defendant had a reasonable fear of the victim. See, e.g., State v. Everett, 178 N.C. App. 44 (2006) (“The trial court erred in excluding Rhodes's testimony regarding the incident at the car dealership to show the victim's propensity for violent behavior. This error was prejudicial in light of defendant's assertion of self-defense”).
Claiming self-defense does not automatically make the defendant’s character an essential element in the case. Thus, the state may not offer evidence of specific instances of conduct by the defendant as part of its case in chief. See, e.g., State v. Denison, 163 N.C. App. 375 (2004), rev’d on other grounds, 359 N.C. 312 (2005). If the defendant puts his character in issue, however, the state may be permitted to inquire about specific instances of conduct on cross-examination, as described below.
“On cross-examination, inquiry is allowable into relevant specific instances of conduct.” G.S. 8C-405(a). For example, if the defendant (or a character witness for the defense) offers reputation or opinion testimony about a “pertinent character trait” of the defendant pursuant to Rule 404(a)(1), such as his reputation for being a peaceful and non-violent person, the state may cross-examine the witness about specific instances of conduct that contradict or undermine the witness’s testimony. See, e.g., State v. Gappins, 320 N.C. 64 (1987) (defense witnesses testified that defendant was peaceful person – state was permitted to cross-examine the witness about specific instances of domestic abuse and abusive conduct by the defendant while drinking); State v. Roseboro, 351 N.C. 536 (2000) (similar ruling where defendant’s family testified that he was a peaceful person and the state was permitted to ask the witness about defendant’s violence towards his wife); State v. Williams, 220 N.C. App. 130 (2012) (defendant’s mother testified that he was a “peacemaker” – state allowed to cross-examine the mother about defendant’s prior armed robbery offense where he “pistol whipped” a victim).
Additionally, if the specific instances of conduct are probative of truthfulness, they may be admissible on cross-examination under Rule 608 to attack or support the credibility of the testifying witness or the credibility of another witness about whose character for truthfulness this witness has testified. G.S. 8C-608(b).
For example, if the defense called a character witness during its case in chief to testify that the victim who testified earlier for the state has a reputation as an “untruthful person,” the defense would not be permitted to ask that witness to give specific examples of prior occasions when the victim was not truthful. See G.S. 8C-608(a) and 405(a); State v. Hernandez, 184 N.C. App. 344 (2007); State v. Hewett, 93 N.C. App. 1 (1989). However, on cross-examination of that defense witness, the state would be allowed to challenge the witness by asking him or her about specific instances of conduct, such as prior occasions where the victim was truthful. See G.S. 8C-405(a); 608(b).
For more information, see the related Evidence entry on Impeaching Witnesses: Evidence of Character and Conduct of Witness – Rule 608.
Even with rebuttal witnesses?
Yes. A character witness who testifies on rebuttal (for either side) is still limited to offering only reputation or opinion testimony on direct (or re-direct) examination, because testimony about specific instances of conduct is strictly limited by the rules of evidence to questions asked “on cross-examination.” See G.S. 8C-405(a).