In a drug trafficking case, where the defense is entrapment, in rebuttal the prosecution moves to admit testimony of a witness who claims to have bought heroin from the defendant in the past. Defense counsel argues that if the only relevance of this testimony is to show propensity to sell heroin, it is not admissible because it is evidence of specific conduct offered to show a trait of character. The character evidence should be in the form of opinion or reputation testimony, not in the form of testimony about specific conduct. Is this argument against admission of the testimony correct?
No. The argument is not correct. It is true that normally character evidence must be cast in the form of opinion or reputation testimony. However, FRE 405(b) permits proof of specific instances of conduct when a trait of character is an essential element of a charge, claim, or defense. Here, a trait of the defendant's character (his propensity to sell heroin) is an essential element of the defense of entrapment. If defendant had a propensity to sell heroin, he was not entrapped. This trait of character is an "ultimate issue" or "essential element." (In the usual case, character is merely an evidentiary fact, not an ultimate issue.) Proof of prior crimes of the type charged has traditionally been admitted in entrapment cases.