Alaska R. Evid. 405 commentary

(a)0Reputation or Opinion. The common law traditionally

has provided that proof of character or a trait of character of a

person, when permitted, may be made by testimony as to

reputation only. Reputation evidence is usually presented by

calling a witness to the stand who is familiar with the reputation of the defendant, or perhaps the victim, if the victim’s

character is being challenged, and asking the witness to state

what the reputation is in the community where the defendant or

victim lives. The foundation for such testimony comes in the

form of establishing that the witness has sufficient familiarity

with the people in the community so that he can make a valid

attempt at assessing reputation.

The rationale for the limitation was best stated by Dean

Ladd:

The object of the law in making reputation the test of

character is to get the aggregate judgment of a community

rather than the personal opinion of the witness which might

be considered to be warped by his own feeling or prejudice.

Even reputation must, to be admitted, be general in a

community rather than based upon a limited class. While it

is not necessary that a character witness know what the

majority of a neighborhood think of a person, he must know

of the general regard with which the party is commonly

held.

It is the general concurrence of a great number of

people reflecting the sentiment toward the party whose

character is subject to inquiry that is necessary to establish a

reputation and to warrant its use as evidence. In this, the

theory of the law is that trustworthiness is gained from the

expressions of many people in their estimation of a person

which would not be obtained by the individual opinion of a

single witness however well acquainted he might be with

the party’s character.

The requirement that the reputation be broadly general

rather than that of a particular group…again emphasizes the

effort to get away from the secularized and consequently

biased estimate of character…0The reputed character of a

person is created from the slow spreading influence of

community opinion growing out of his behavior in the

society in which he moves and is known and upon this basis

is accepted as proof of what his character actually is.

Ladd, Techniques and Theory of Character Testimony, 24

Iowa L. Rev. 458, 513 (1939).

There is a growing trend in common law jurisdictions to

permit testimony as to the person’s reputation where he works,

as well as where he lives. The Federal Rule, on which this Rule

is modeled, does not indicate the scope of reputation evidence.

This rule fills a gap left in the Federal Rule by clearly stating

that reputation evidence is not confined to the community in

which the defendant lives; reputation where the defendant

works, goes to school or in a group with whom the defendant

habitually associates will suffice. See Uniform Rule 63(28)

(1953); McCormick, Evidence § 191, at 456; 112 A.L.R. 1020

(1938).

While not explicitly required by the rule, reputation

evidence to be relevant must relate to the period in which the

acts giving rise to the litigation took place. The evidence must

relate to a relevant trait of character under Rule 404.

Besides expanding the scope of permissible reputation

evidence, this rule departs from the majority common law view

in permitting opinion evidence to be admitted. It is consistent,

however, with recent Alaska cases. See, e.g., Freeman v. State

486 P.2d 967 (Alaska 1971). This was considered such a

controversial issue that the House Committee on the Judiciary

deleted the provision allowing for opinion evidence in its

proposed draft of rules. During the House debate, the provision

was reinstated. The case for opinion testimony is made by

Wigmore:

Put any one of us on trial for a false charge, and ask

him whether he would not rather invoke in his vindication,

as Lord Kenyon said, “The warm affectionate testimony” of

those few whose long intimacy and trust has made them

ready to demonstrate their faith to the jury, than any amount

of colorful assertions about reputation. Take the place of a

juryman, and speculate whether he is helped more by the

witnesses whose personal intimacy gives to their belief a

first and highest value, or by those who merely repeat a

form of words in which the term “reputation” occurs.

7 Wigmore, Evidence § 1936, at 166.

In opening the door to this evidence, Rule 405 places both

familiar and new responsibilities on the trial judge.

He will have to exercise firm control over the

proceedings to ensure that the witness does not relate the

particular incidents on which he bases his opinion of

defendant—for proof of character by specific acts is still

prohibited. And as with all testimony, he will have to weigh

its probative value against the countervailing factors to

admissibility specified in Rule 403.

2 Weinstein’s Evidence, ¶ 405[03] (1975). In exercising the

sound discretion required by Rule 403, the trial judge should

be able to handle the new types of opinion testimony that may

be offered when Rule 405 is considered in conjunction with

other Rules that expand categories of admissible evidence. See,

People v. Jones, 266 P.2d 38 (Cal. 1954); cf., United States v.

Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950). See generally Curran,

Expert Psychiatric Evidence of Personality Traits, 103 U. Pa.

L. Rev. 999 (1955); Falknor & Steffen, Evidence of Character:

From the “Crucible of the Community” to the “Couch of the

Psychiatrist,” 102 U. Pa. L. Rev. 980 (1954). Alaska has had

experience with novel types of opinion. See Freeman v. State,

supra.

As discussed in the next paragraph, specific acts cannot be

used to prove character unless a character trait is in issue. But

specific acts can be used to prove the knowledge of a character

witness on cross-examination. According to the great majority

of cases, on cross-examination inquiry is allowable as to

whether the reputation witness has heard of particular instances

of conduct relevant to the trait in question if the crossexaminer

has a good faith belief that the conduct actually took place.

Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168 (1948);

Annot., 47 A.L.R.2d 1258 (1956). The theory is that, since the

reputation witness relates what he has heard, the inquiry tends

to shed light on the accuracy of his hearing and reporting.

Accordingly, the opinion witness would be asked whether he

knew, as well as whether he had heard. The fact is, of course,

that these distinctions are of slight if any practical significance,

and the second sentence of subdivision (a) eliminates them as a

factor in formulating questions. This recognition of the

propriety of inquiring into specific instances of conduct does

not circumscribe inquiry otherwise into the bases of opinion

and reputation testimony.

(b) Specific Instances of Conduct. Of the three methods of

proving character provided by the rule, evidence of specific

instances of conduct is the most convincing. At the same time

it poses the greatest capacity to arouse prejudice, to confuse, to

surprise, and to consume time. Consequently the Rule confines

the use of evidence of this kind to cases in which character is,

in the strict sense, in issue and hence deserving of a searching

inquiry. When character is used circumstantially and hence

occupies a lesser status in the case, proof may be only by

reputation and opinion. These latter methods are also available

when character is in issue. This treatment is, with respect to

specific instances of conduct and reputation, conventional

contemporary common law doctrine. McCormick (2d ed.)

§ 187.

Probably the most familiar example of character being in

issue is the libel case where someone publishes a charge that

the plaintiff is a thief, plaintiff sues the publisher, and a defense

of truth is raised. The publisher is entitled to show the specific

acts that prove the charge. Another familiar example is a case

in which an employer is charged with negligently hiring or

retaining an incompetent employee. On the question of the

competence of the employee, both sides are entitled (and may

have to in order to satisfy burden of proof requirements) to

offer evidence of specific acts of the employee demonstrating

competence or incompetence.