concurring:
I agree that admission of the purported “character” rebuttal warrants retrial of this matter. I write separately to comment further on the State’s use of this evidence.
Admissibility of character evidence under NRS 48.045
At trial, during the State’s case in chief, the parties stipulated to playing a taped interview between Roever and Detective Frank Rúas. The interview was replete with self-serving statements by Roever that, in my view, placed her good character in issue. Thereafter, also during its case in chief, the State called a series of rebuttal “character” witnesses who testified to numerous statements allegedly made by Roever and to separate prior incidents in which she was allegedly involved.1 These include alleged statements by Roever that she had (1) murdered her mother in a bathtub and watched her mother’s teeth float in the water; (2) snapped her newborn baby’s neck; (3) scalped an African-American school girl and cut out her teeth during a blackout; (4) “gutted” her ex-boyfriend and (5) threatened to kill the victim in this case on several occasions. There was further testimony on “character rebuttal’ ’ that she had killed a classmate, suffered from a personality disorder, experienced blackouts, drank excessively, neglected her children, and tried to kill her former spouse with a knife.
NRS 48.045(1) articulates the general rule regarding the admissibility of character evidence in the context of a criminal trial:
*8751. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(a) Evidence of his character or a trait of his character offered by an accused, and similar evidence offered by the prosecution to rebut such evidence ....
The State contends that Roever placed her character at issue when she stated during her taped interview with the police that she was “a peace-loving person, who would not hurt a fly and whose credibility should not be questioned.” At oral argument, the State asserted that the “bad acts” testimony was admissible under NRS 48.045(l)(a) as rebuttal character evidence and under NRS 48.045(2), to establish that Roever had committed criminal acts while ‘‘blacked out” and that she was capable of concocting fantastic or incredible stories. Under these theories, the district court allowed the State to rebut Roever’s character evidence with statements and conduct to which we now refer.2 Here, although I conclude that Roever placed her character in issue by stipulating to the admission of the tape, I also conclude that the “rebuttal evidence” was improperly admitted.
NRS 48.055 provides the available mechanism for proving character under NRS 48.045:
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 in the form of an opinion. On cross-examination, inquiry may be made into 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 of specific instances of his conduct may be made on direct or cross-examination.
NRS 48.045 and NRS 48.055(1) mirror Federal Rules of Evidence 404 and 405. With the exception of allowing opinion testimony in addition to reputation testimony to establish character, Federal Rules of Evidence 404 and 405 adopt traditional common law principles of admissibility of character evidence. At common law, specific instances of conduct were not admissible to prove the good character of an accused or to prove bad character in rebuttal. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 584 (1956) (referred to in committee *876notes to FRE 404 and 405). NRS 45.045(2) codifies this principle.3 Thus, the legislative history of these provisions confirms that such character evidence should be limited to opinion or reputation. Here, the State concedes that it did not confront Roever on the witness stand with the specific instances of conduct and statements now under scrutiny. Thus, with the exception of the threats to Wilhite and, possibly, the evidence of attempts to murder her former spouse, see NRS 48.045(2) and Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), the district court improperly allowed the State to introduce the aforementioned evidence.4
Even if there was a doctrinal basis for the admissibility of this “character” evidence, its introduction would also run afoul of the district court’s discretion under NRS 48.0355 because much of this evidence was so inflammatory, speculative and utterly fantastic as to have almost no probative value absent some independent corroboration.
I also agree, subject to the exceptions noted above, that the alleged statements and specific instances of conduct were not admissible under NRS 48.045(2) for the “other purposes” of proving that she had committed acts of violence during blackouts, or that she was capable of concocting fantastic or incredible stories. Again, under NRS 48.035, the probative value of this evidence, i.e., to prove that she could have perpetrated the murder without a specific recollection of having done so, was speculative at best. Further, if this evidence was calculated to prove her capability to fabricate, it was of marginal relevance as well as patently prejudicial. Thus, even if a hearing had been conducted under Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985),6 it would *877have been improper to admit this evidence. See Tinch v. State, 113 Nev. 1170, 946 P.2d 1061 (1997).7
The State also sought affirmance on the basis that the offending character evidence was admissible to attack Roever’s credibility under NRS 50.085.8 See NRS 48.045(1)(c).9 However, character impeachment must be limited to opinions regarding truthfulness or untruthfulness. See NRS 50.085(l)(a), (b). As noted, the State introduced specific acts of misconduct through the testimony of third parties. Thus, the character impeachment in question was not limited to opinions.
Further, there was no attempt to bring these statements and alleged incidents into the case through cross-examination of Roever herself. Thus, the specific instances of conduct of which Roever complains on appeal, if introduced as “prior bad acts” to attack Roever’s credibility, were introduced extrinsically in violation of NRS 50.085(3):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on cross-examination of the witness himself or on cross-*878examination of a witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the general limitations upon relevant evidence and the limitations upon interrogation and subject to the provisions of NRS 50.090.
NRS 50.085.10 Here, Roever may have been subject to impeachment through cross-examination with regard to the bad acts discussed by the majority, assuming a good faith basis to inquire into them and assuming the interrogation would not violate NRS 48.035. The State, however, (1) chose not to confront her directly with the extraneous events, and (2) the extrinsic proof of them was improper with or without confrontation.11
I now turn to the possibility that the errors committed might be subject to a harmless error analysis. I reject adoption of such an alternative, despite persuasive circumstantial evidence suggesting that Roever is the only person who could have committed the murder of Ian Wilhite. Although the evidence of Roever’s guilt seems quite strong, the errors with regard to the so-called character rebuttal are so profound that our utilization of the harmless error doctrine would set a most dangerous precedent. Thus, I would urge the State to exercise restraint in its next attempt to seek a conviction.
Upon inquiry at oral argument, Roever’s counsel indicated that, in light of the stipulation allowing her statement to be admitted as a defense exhibit and played during the State’s case in chief, the chronological order of the presentation of the alleged inadmissible evidence was not at issue on appeal.
Although the State conceded at oral argument that the evidence given by Chidester, Mr. and Mrs. Lambert and Bruske was introduced to rebut Roever’s evidence of good character and not for impeachment via “prior bad acts,” the State has argued in the alternative, in its brief, that admissibility could also be based on such grounds.
NRS 48.045(2):
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
See footnote No. 10 for exceptions to this ruling, including the evidence of threats Roever made against Wilhite prior to his demise.
NRS 48.035(1) states: “Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.”
The State has argued in its brief and at oral argument that the need to conduct a Petrocelli hearing was obviated because the State did not seek admission of the extraneous evidence in question for other purposes such as motive, intent, etc. This contradicts the State’s arguments that the evidence was also probative to prove that Roever had blackouts and was capable of concocting incredible stories. NRS 48.045(2) is implicated when specific instances of conduct are used for purposes other than character “such as” motive or intent, etc. The rule is not restricted to the exceptions which are noted in the statute by way of example.
Further, the State has repeatedly taken the position in this matter that the *877defendant’s failure to ask for such a hearing precludes her from arguing the point on appeal. This argument underscores an apparent lack of understanding of the process. While it is true that the failure to hold such hearings does not always prejudice fundamental rights so as to warrant reversal, it is generally the burden of the State to bring matters implicating NRS 48.045(2) to the attention of the trial court.
This court has established the following prerequisites before prior bad acts evidence can be admitted: “(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65 (citing Walker v. State, 112 Nev. 819, 824, 921 P.2d 923, 926 (1996)).
NRS 50.085 states in part:
1. Opinion evidence as to the character of a witness is admissible to attack or súpport his credibility but subject to these limitations:
(a) Opinions are limited to truthfulness or untruthfulness; and
(b) Opinions of truthful character are admissible only after the introduction of opinion evidence of untruthfulness or other evidence impugning his character for truthfulness.
2. Evidence of the reputation of a witness for truthfulness or untruthfulness is inadmissible.
NRS 48.045(l)(c):
1. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(c) Unless excluded by NRS 50.090, evidence of the character of a witness, offered to attack or support his credibility, within the limits provided by NRS 50.085.
Such a ruling would not compel exclusion of all of the statements and incidents attributed to Roever. By way of example, her threats against Wilhite voiced to third persons, including Lambert; her statements to Chidester shortly after the killing to the effect that “she knew how to take care of people who got in her way”; her statements regarding disagreements with Wilhite; any statements regarding how Wilhite died or the facts leading up to his death; and references to her daughter’s diary on cross-examination of the daughter. These must be separately evaluated with regard to other rules of evidence, including, but not limited to, NRS 48.035.
On retrial, if Roever places her character in issue, Chidester, Mr. and Mrs. Lambert and Bruske could testify as character witnesses in rebuttal within the confines of this court’s rulings and, I believe, the views set forth in this separate opinion. Then, specific positive instances of conduct by Roever could be explored on their cross-examinations, and specific negative instances could be explored on Roever’s cross-examination, if she testifies.
Under NRS 50.085(3), had Roever been specifically confronted with the extraneous events alleged by these witnesses, her denial of them would not have opened the door to their admission under the traditional approach taken in NRS 50.085. However, under a modern doctrine of “specific contradiction,” a doctrine we have yet to embrace, a witness may be subject to “collateral” impeachment by contradictory evidence from third parties. Although this case is not appropriate for an examination of such a rule, we should, in an appropriate future case, examine whether witnesses should be insulated from false testimony under the “extrinsic evidence” rule of NRS 50.085(3).