3.5 Character of Victim

            You have heard evidence of specific instances of the victim’s character for [specify character trait].  You may consider this evidence in determining whether the victim acted in conformance with that character trait at the time of the offense charged against the defendant in this case.  In deciding this case, you should consider the victim’s character evidence together with and in the same manner as all the other evidence in this case. 

Comment

            Generally, character evidence is inadmissible, but it may be admitted for a particular purpose.  See Fed. R. Evid. 404(a)(2), and if sexual conduct of the victim is at issue, see Fed. R. Evid. 412.  This instruction is a form of limiting instruction.  See Fed. R. Evid. 105.  When extrinsic evidence corroborating a defendant’s testimony about a victim’s prior acts of violence is admitted pursuant to Fed. R. Evid. 404(a)(2), this instruction should be modified accordingly.  United States v. Saenz,179 F.3d 686, 687-89 (9th Cir. 1999); United States v. James, 169 F.3d 1210, 1214 (9th Cir. 1999).  See also United States v. Keiser, 57 F.3d 847, 854 (9th Cir. 1995) (“The fact that [Fed. R. Evid. 404(a)(2)] is an exception to the rule against introduction of character evidence to imply that a person acted in conformity with that character on a particular occasion suggests that the very purpose of victim character evidence is to suggest to the jury that the victim did indeed act in conformity with his violent character at the time of the alleged crime against him.”).