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  • Brian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 405

Updated: Jan 21

Texas Rule of Evidence 405 - Conroe Criminal Defense Lawyer - Brian Foley - Board Certified in Criminal Law.

Rule 405 lists the methods of proving character evidence when it is in fact allowed by the rules. For example the victim's trait for violence during an assault trial. If evidence of a character trait is admissible then an attorney may offer evidence in one of two ways.

  1. Reputation

  2. Opinion

Reputation evidence is actually testimony that is specifically based on hearsay. The question is, what is the general understanding of the character of this person in the community? Reputation evidence must actually be based on the witness' personal knowledge of the hearsay evidence of character in the community.

If the witness has direct knowledge on the matter they can offer an opinion. But they may not get into specific instances of conduct.

So for example a little old lady that the defendant helped cross the street one time would not be able to say that the defendant has a good reputation in the community if that is all she knew about the defendant. She could offer her opinion of his character for lending assistance to those in need if for example he were charged with failure to stop and render aid.

However, she could only give her opinion that he has good character. She would not be able to go into the specific instance of conduct that allowed her to become aware of his good character. On cross examination a prosecutor can then cross examine the witness with "have you heard" or "did you know" questions addressing specific instances of conduct which might sway the witness.

For example, in the same scenario the prosecutor could ask, "Have you heard or did you know that the defendant watched his own brother drown at a local swimming pool?" If the witness had heard about this and it still didn't change her opinion she could say so or she might be swayed.


If during the guilt innocence phase of a criminal case witnesses may only testify to reputation information or factual information they knew of before the date of the alleged offense. So if the little old lady didn't get helped crossing the street until after the defendant fled the scene of the wreck causing injury then she should not be allowed to testify until the punishment stage of trial. This is true because this rule allows for character evidence to determine if it is more or less likely that the act was committed and conduct after a legal accusation is more suspect than conduct engaged in without the possible motive of establishing good character for evidentiary purposes.

Specific Instances of Conduct

You can't just call the person's mother to the stand and have her tell every good thing that they have ever done in their life. There is a general rule against using specific instances of conduct for the party offering the evidence of good character. However, if the person's character or character trait is actually one of the essential elements of the charge, claim, or defense, then you may offer relevant specific instances of conduct. For example: Evidence that a defendant passed a drug test is not admissible as a specific instance of conduct because “[d]rug use is not an essential element of the offense of possession of a controlled substance.” Arreola v. State, No. 11-11-00263-CR, 5-6 (Tex. App. May. 24, 2012)

Rule 405. Methods of Proving Character Reputation or Opinion.

(a) By Reputation or Opinion

(1) In General. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, inquiry may be made into relevant specific instances of the person’s conduct.

(2) Accused’s Character in a Criminal Case. In the guilt stage of a criminal case, a witness may testify to the defendant’s character or character trait only if, before the day of the offense, the witness was familiar with the defendant’s reputation or the facts or information that form the basis of the witness’s opinion.

(b) By Specific Instances of Conduct. When a person’s character or 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.

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