27-405. Rule 405. Method of proving character; reputation or opinion; specific instances of conduct.

(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(2) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

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Annotations

Although subsection (1)(a) of section 27-404 allows the accused to offer evidence of a pertinent trait of his or her character and allows the prosecution to rebut that evidence, this section limits the manner in which the evidence may be admitted. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

This section limits the defendant's evidence of character to evidence of opinion or reputation. But even when a defendant improperly offers specific instances of his or her good conduct, the prosecution may not counter by offering evidence of specific instances of bad conduct. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

Under this section, the prosecution's rebuttal witnesses may testify only to reputation or opinion. The witnesses may not be used to prove that specific instances of conduct occurred. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

When character is not an element of the crime or a defense, this section dictates that the only inquiry that can be made into specific instances of conduct is through cross-examination of the defendant's character witnesses, and during cross-examination, the prosecutor is limited to an inquiry whether the witness has heard of a given fact, misdeed, or criminal conviction. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

The language of this section changes the prior case law rule, that evidence of a homicide victim's propensity for violence ordinarily is admissible only in the form of reputation testimony, so that when character is an essential element of a charge, claim, or defense, it will also be admissible. State v. Sims, 213 Neb. 708, 331 N.W.2d 255 (1983).

Defendant's character witness was properly cross-examined on specific instances of defendant's prior convictions. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).

Under subsection (2) of this section, the accused in a criminal case may offer evidence of specific instances of conduct of the victim of the crime for the purpose of proving the victim was the first aggressor to substantiate the accused's self-defense claim. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).

The type of character evidence admissible under this section and section 27-608 does not include the opinion of an expert witness regarding the truthfulness of another witness based upon purported scientific studies. State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 493 (1993).