§ Rule 405. Methods of proving character

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Rule 405. Methods of proving character

(a) Reputation evidence. 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. On cross-examination of the reputation witness, inquiry is allowable into specific instances of conduct probative of the character trait in question, except that in criminal cases inquiry into allegations of other criminal misconduct of the accused not resulting in conviction is not permissible.

(b) Specific instances of conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except as follows:

(1) In civil cases where character or a trait of character is admissible as an element of a claim or defense, character may be proved by specific instances of conduct.

(2) In criminal cases where character or a trait of character is admissible under Pa.R.E. 404(a)(2), the accused may prove the complainant's character or trait of character by specific instances of conduct.

Comment: Pa.R.E. 405 differs from F.R.E. 405. One of the principal points of divergence is that Pennsylvania law does not permit proof of character by opinion evidence. SeeCommonwealth v. Lopinson, 234 A.2d 552 (Pa. 1967).

Reputation evidence is an exception to the hearsay rule under Pa.R.E. 803(21).

Subsection (a). Pa.R.E. 405(a) differs from F.R.E. 405 because Pa.R.E. 405(a) prohibits cross-examination of reputation witnesses offered on behalf of a defendant in a criminal case regarding arrests of the defendant not resulting in conviction. This is consistent with Pennsylvania law. See Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981). Subsection (a) was amended in 2000 in view of Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999). Where a reputation witness is cross-examined regarding specific instances of conduct, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (Pa. Super. 1993).

Subsection (b). Unlike F.R.E. 405(b), Pa.R.E. 405(b) distinguishes between civil and criminal cases in permitting the use of specific instances of conduct to prove character.

Cf. Pa.R.E. 608(b) (use of specific instances of conduct to attack or support credibility of witness, either on cross-examination or as extrinsic evidence).

Subsection (b)(1). With regard to civil cases, Pa.R.E. 405(b)(1) is identical to the Federal Rule in permitting proof of character by specific instances of conduct where character is an essential element of the claim or defense. This is consistent with Pennsylvania law. See Matusak v. Kulczewski, 145 A. 94 (Pa. 1928); Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968); Commonwealth ex rel. Grimes v. Grimes, 422 A.2d 572 (Pa. Super. 1980).

Subsection (b)(2). In criminal cases under Pa.R.E. 404(a)(2), the accused may offer evidence of a pertinent trait of character of the complainant. In such a case the trait may be proven by specific instances of conduct. This is consistent with Pennsylvania law. See Commonwealth v. Dillon, 598 A.2d 963 (Pa. 1991); Commonwealth v. Amos, 284 A.2d 748 (Pa. 1971).