Section 405. Methods of Proving Character

(a) Reputation. Except as provided in (b) and (c), where evidence of a person’s character or a trait of character is admissible, proof may be made by testimony as to reputation only. On cross-examination, inquiry is allowable into relevant specific instances of conduct for impeachment purposes.

(b) Specific Instances of Conduct. In cases in which a person’s character or a trait of character is an essential element of a charge, claim, or defense, proof may also be made by specific instances of conduct.

(c) Violent Character of the Victim. See Section 404(a)(2), Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: Character Evidence Generally: Character of the Victim.

NOTE

Subsection (a). This subsection is derived from Commonwealth v. Roberts, 378 Mass. 116, 129, 389 N.E.2d 989, 997 (1979), and Commonwealth v. Piedra, 20 Mass. App. Ct. 155, 160, 478 N.E.2d 1284, 1288–1289 (1985). Character may only be introduced through evidence of general reputation, except as provided by G. L. c. 233, § 21 (evidence of person’s prior conviction is admissible to impeach his or her credibility); Section 609, Impeachment by Evidence of Conviction of Crime. See Commonwealth v. Binkiewicz, 342 Mass. 740, 755, 175 N.E.2d 473, 483 (1961). Unlike Federal law, general reputation cannot be proven by evidence of personal opinions or isolated acts. Commonwealth v. Walker, 442 Mass. 185, 198–199, 812 N.E.2d 262, 274 (2004); Commonwealth v. Benjamin, 430 Mass. 673, 678 n.6, 722 N.E.2d 953, 958 n.6 (2000). Reputation evidence must be based on one’s reputation in the community or at that person’s place of work or business. Commonwealth v. Walker, 442 Mass. at 198, 812 N.E.2d at 274. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham, 405 Mass. 618, 631, 542 N.E.2d 591, 599 (1989) (community). A witness’s testimony must be based on the witness’s knowledge of the person’s reputation in the community, not of the opinions of a limited number of people. Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933–934, 416 N.E.2d 551, 552–553 (1981); Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871, 408 N.E.2d 883, 883–884 (1980). Contrast Commonwealth v. Walker, 442 Mass. at 197–199, 812 N.E.2d at 273–274 (declining to adopt Proposed Mass. R. Evid. 405[a], which would permit character witnesses to testify not only about the defendant’s reputation in the community, but also about their own opinion of the defendant’s character).

A witness who testifies to a person’s reputation is then subject to cross-examination for impeachment purposes “as to his awareness of rumors or reports of prior acts of misconduct by the [person], including prior arrests or convictions, that are inconsistent or conflict with the character trait to which the witness has testified.” Commonwealth v. Montanino, 27 Mass. App. Ct. 130, 136, 535 N.E.2d 617, 621 (1989). The prosecution may also present rebuttal evidence of a defendant’s bad reputation. Commonwealth v. Maddocks, 207 Mass. 152, 157, 93 N.E. 253, 253–254 (1910).

Subsection (b). This subsection is derived from Care & Protection of Martha, 407 Mass. 319, 325 n.6, 553 N.E.2d 902, 906 n.6 (1990). Specific act evidence may be admitted in those cases where character is directly at issue, as in child custody and adoption cases on the issue of parental fitness, see Adoption of Irwin, 28 Mass. App. Ct. 41, 43, 545 N.E.2d 1193, 1195 (1989); negligent entrustment actions, see Leone v. Doran, 363 Mass. 1, 13–14, 292 N.E.2d 19, 29, modified on other grounds, 363 Mass. 886, 297 N.E.2d 493 (1973); negligent hiring actions, see Foster v. The Loft, Inc., 26 Mass. App. Ct. 289, 290–291, 526 N.E.2d 1309, 1310–1311 (1988); and when a defendant raises the defense of entrapment, see Commonwealth v. Miller, 361 Mass. 644, 652, 282 N.E.2d 394, 400 (1972).

Subsection (c). See Notes to Section 404(a)(2), Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: Character Evidence Generally: Character of the Victim.