Rule 404(a) also states other exceptions to the general rule of exclusion. Under Rule 404(a)(2)(A), the defense may offer evidence of a pertinent trait of character of the accused. And Rule 404(a)(2)(B)and (C) permit introduction of character evidence of victims. Character evidence can be used as evidence of conduct. For example, an accused may introduce testimony that he or she is a moral, law-abiding person. The accused reasons that if he or she is that type of person, they would probably not commit the crime that they are charged with. In a prosecution for a violent crime, the accused may introduce evidence that the alleged victim is an aggressive person. The accused is inviting the court members to infer that the alleged victim was in reality the aggressor on the occasion in question.
Generally speaking, counsel are restricted to proving character evidence based on reputation and opinion evidence. A major difference exists, however, when character is an essential element of the of a claim or defense. Under Rule 405(b), character may be proved by specific instances of conduct.
Elements of the Foundation
To prove character through extrinsic evidence, the proponent should be prepared to establish the following foundational elements:
1. That the Servicemember have a particular character trait;
2. The witness has an opinion about that persons trait, familiar with the person’s reputation concerning that trait, or can testify about acts that are relevant to the trait;
3. The witness states an opinion about the trait, or relates the reputation of the person, or testifies about specific instances of conduct related to the trait.
Sample Foundation
Proponent (P): Who is SPC Johnson
Witness (W): He is in my unit
P: How long have you known him
W: for 3 years
P: How much contact have you had with him during those 3 years?
W: On a daily basis
P: Does SPC Johnson have a reputation for violence or peacefulness in the unit?
W: Yes
P: Do you know that reputation?
W: Yes
P: How did you hear about his reputation?
W: From other Soldiers in the unit. I also have had the opportunity to observe it on numerous occasions.
P: What is that reputation?
W: He is a very peaceful person. He walks away from adversity.