Also known as: specific instance of conduct · specific acts of conduct · specific acts · particular conduct
Written by attorneys · grounded in primary & secondary sources — see below
Evidence of particular acts by a person offered to prove character or a witness's character for truthfulness. Such evidence is admissible when character is an essential element of a claim or defense and on cross-examination when probative of truthfulness.
Alex Rivera called a reputation witness who vouched for the defendant's honesty. On cross-examination the prosecutor asked about two prior false statements the defendant made to investors. The court allowed the questions because they were probative of truthfulness and no extrinsic evidence was offered.
Jordan Hale sued Taylor Quinn for battery after a bar fight. Quinn offered evidence that Hale had started three similar fights in the same month. The court admitted the specific instances because character was an essential element of Quinn's self-defense claim.
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Sabrina Shah testified for the prosecution. The defense offered evidence that Shah belonged to the same prison gang as the defendant. The court allowed the inquiry on cross-examination to show bias without admitting extrinsic proof of other gang acts.
Morgan Ellis called a character witness who testified to the defendant's truthfulness. The prosecutor asked on cross-examination about a prior instance in which the defendant falsified loan documents. The court permitted the question as probative of untruthfulness.
Parker Reed sued Dana Cole for negligent entrustment of a car to an unfit driver. Reed introduced evidence of three prior reckless-driving incidents involving the driver. The court admitted the specific instances because the driver's character was an essential element of the claim.
Sapphire Technologies called a character witness who vouched for the defendant's honesty. On cross-examination the prosecutor asked about a prior arrest for fraud. The court permitted the question because it was probative of truthfulness and no extrinsic evidence was introduced.
Specific instances may be used when character is an essential element of a charge, claim, or defense under Rule 405(b). They may also be inquired into on cross-examination under Rule 608(b) if probative of truthfulness.
Extrinsic evidence is barred to avoid distracting mini-trials on collateral matters, prevent unfair prejudice, and conserve time. The cross-examiner must accept the witness's answer.
Rule 405(a) permits reputation or opinion testimony in all cases where character evidence is admissible and allows inquiry into specific instances only on cross-examination. Rule 405(b) additionally permits specific instances when character is an essential element.
The cross-examiner must have a good-faith basis for believing the act occurred. The inquiry must be probative of truthfulness or untruthfulness.
…the time of the burning the American flag was the only national flag in the United States. Pp. 402-406. (b) In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the focus must be on whether the person intended to convey a particularized message by his conduct, and…