Mass. R. Evid. 405

As amended through February 29, 2024

Section 405 - Methods of Proving Character

(a)By Reputation. Except as provided in (b) and (c), when evidence of a person's character or a character trait is admissible, it may be proved by testimony about the person's reputation only. On cross-examination of the character witness, the court may allow impeachment by an inquiry into relevant specific instances of the person's conduct.

(b)By Specific Instances of Conduct. When a person's character or a character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

(c)By Violent Character of the Victim. See Section 404(a)(2), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case.

Mass. Guid. Evid. 405

This Guide was last amended effective 1/1/2023.

Subsection (a). This subsection is derived from Commonwealth v. Roberts, 378 Mass. 116, 129 (1979), and Commonwealth v. Piedra, 20 Mass. App. Ct. 155, 160(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 credibility), and Section 609, Impeachment by Evidence of Conviction of Crime. See Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (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 (2004); Commonwealth v. Benjamin, 430 Mass. 673, 678 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. Walker, 442 Mass. at 198. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham, 405 Mass. 618, 631 (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(1981); Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871(1980). Contrast Walker, 442 Mass. at 197-199 (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(1989). The prosecution may also present rebuttal evidence of a defendant's bad reputation. Commonwealth v. Maddocks, 207 Mass. 152, 157 (1910).

Subsection (b). Specific act evidence may be admitted in cases where character is directly at issue. See Commonwealth v. Buswell, 468 Mass. 92, 104-105 (2014) (entrapment defense); Leone v. Doran, 363 Mass. 1, 13-14, modified on other grounds, 363 Mass. 886 (1973) (negligent entrustment actions); Foster v. Loft, Inc., 26 Mass. App. Ct. 289, 290-291(1988) (negligent hiring actions).

Subsection (c). See Notes to Section 404(a)(2), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case.