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PROOF OF CHARACTER [FED. RULES EVID. RULES 405(a) AND 608(a)]

[See Evidence Outline]

Character may now be proved either by reputation opinion testimony. FED. R. EVID. Rule 405(a) (dealing with reputation or opinion as to character or trait of character generally); FED. R. EVID. Rule 608(a) (dealing with reputation or opinion as to credibility). And, the Courts have recognized a significant difference in the predicate required to prove character through opinion testimony as opposed to reputation.

BY REPUTATION TESTIMONY

Reputation testimony is by definition hearsay and a reputation witness “must have sufficient acquaintance with the principal witness and his community in order to ensure that he testimony adequately reflects the community’s assessment.” US v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982) (holding that some 2-3 month acquaintance with witness is insufficient even though the witness “lived in …the location …thirty-three years” and “worked with [witness] every day”); Michelson v. US, 335 US 469, 478; US v. Angello, 452 F.2d 1135, 1139-40 (2d Cir. 1971),

cert. denied, 406 US 922 (1972); US v. Salazar, 425 F.2d 1384, 1286 (9th cir. 1970); US v. Oliver, 492 F.2d 943 (8th Cir. 1974) (allowing reputation testimony based upon a short period of acquaintance).

“A proper foundation must be laid before the admission of reputation testimony. The reputation witness must be qualified through a showing of such acquaintance with the person, the community in which he lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded.” Michelson v. US, 335 US 469, 478 (1948).

And the trial court’s determination regarding the adequacy of the foundation for a reputation witness is ordinarily not overturned on appeal, Michelson v. US, 335 US 469, 480-81 (1948), without demonstrating an abuse of discretion. US v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982).

BY OPINION TESTIMONY

Historically, reputation evidence was the exclusive method for proving character. Opinion evidence was excluded. Weinstein’s, Evidence, 608[04], 608-20 [1978]; McCormick,

Evidence, § 44, 95 (1954); Wigmore, Evidence, §§ 1981-6 (3d Ed. 1940).

However, the enactment of Rule 608(a) of the Federal Rules of Evidence in 1976 substantially enlarged the avenues by which one may prove character, by providing that the credibility of a witness may be attacked “by evidence in the form of opinion of reputation.” FED. R. EVID. Rule 608(a)1. US v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

Under new Rule 608(a), no foundation regarding length of acquaintance or recent information such as that required for reputation testimony is required for opinion testimony, US v. Lollar, 606 F.2d 587 (5th Cir. 1979); US v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982); and such “opinion” testimony may be based upon isolated instances of conduct, or personal feelings by the witness. US v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982).

“The Fifth Circuit determined that prior questioning of the opinion witness regarding his knowledge of the defendant’s reputation was unnecessary. The rule imposes no prerequisite condition upon long acquaintance or recent information about the witness; cross- examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principle witness.” US v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982). See also US v. Lollar, 606 F.2d 587, 589 (5th Cir. 1929).

This distinction between the foundations required for reputation as opposed to opinion testimony “follows from an analysis of the nature of the evidence involved.” US v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982).

Reputation testimony is based upon the community’s assessment of the witness’ character, whereas opinion testimony relates to “the witness’ own impression of an individual’s character.” Accordingly, opinion testimony relating to character may be based upon even isolated instances which “cross-examination can be expected to expose.” US v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

“The reputation witness must have sufficient acquaintance with the principal witness and his community in order to ensure that the testimony adequately reflects the community’s assessment… In contrast, opinion testimony is a personal assessment of character. The opinion witness is not relating community feelings; the testimony is solely the impeachment witness’ own impression of an individual’s character for truthfulness. Hence, a foundation of long acquaintance is not required for opinion testimony. Of course, the opinion witness must testify from personal knowledge… But once that basis is established the witness should be allowed to state his opinion, cross-examination can be expected to expose defects.” US v. Watson, 669 F.2d 1574, 1582 (11th Cir. 1982).

In essence, the litany of arcane reputation questions mastered by almost every third year law student and lost by just as many jurors need not be asked with respect to proof of character by opinion testimony.

“While it may be more desirable to have counsel first ask the impeaching witness about his knowledge of the defendant’s reputation for truth and veracity, and whether based on that knowledge he would believe the defendant under oath, Rule 608(a) imposes no such requirement.

Witnesses may now be asked directly to state their opinion of the principle witness’ character for truthfulness and they may answer for example, “I think X is a liar.” The rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings or personal hostility towards the principal witness. US v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979) (emphasis supplied).

LIMITATIONS ON CROSS-EXAMINATION OF CHARACTER EVIDENCE

It would be improper to inquire of character witness as to “the accused reputation in the community after the criminal charges has been made public,” or whether a DEA Agent’s testimony that Defendant was “major narcotics trafficker” would be inconsistent with the witness’ knowledge of defendant, since such questions struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial.” US v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir. 1977). But see US v. Senak, 527 F.2d 129 (7th Cir. 1975), cert. denied, 425 US 907 (1976) (holding that it is not per se objectionable to ask character witness questions regarding charges for which he is on trial); US v. Morgon, 554 F.2d 31 (2d Cir. 1977), cert. denied, 434 US 965; US v. Bermudez, 526 F.2d 89 (2nd Cir. 1975), cert. denied, 425 US 970 (1976) (holding it’s OK to ask character witness if he had heard defendant had previously been arrested for marijuana offense. Prosecutor had appropriately informed court of his proposed line of questioning); see FED. R. CRIM. P. Rule 104.

OPENING UP CHARACTER GENERALLY

In proffering defense testimony counsel should be mindful that a witness’ self-serving declaration also may open door to otherwise inadmissible evidence, bad character, and specific instances of misconduct. US v. Babbitt, 683 F.2d 21 (1st Cir. 1982); US v. Billups, 692 F.2d 320 (4th Cir. 1982) (stating I’ve never accepted “anything” for the waterfront boys); Carson v. Polly, 689 F.2d 562 (5th Cir. 1982) (stating I don’t have no problem “controlling my temper”); US v. Giese, 597 F.2d 1170 (9th Cir. 1979), cert. denied, 444 US 971.

RULE OF COMPLETENESS [FED. R. EVID. RULE 106]

REMAINDERS OF OR RELATED WRITINGS OR RECORDED STATEMENTS

(“Rule of Completeness”) (See Evidence Outline)

You may not need to wait for your turn to put on your case. When written or recorded statement or a portion thereof is introduced, the adverse party may “require at that time” any other part of any other writing or statement, which ought in fairness, be considered contemporaneously with it. In re Air Crash Disaster, 635 F.2d 67 (2d Cir. 1980) (holding that the Rule requires playing of the entire tape and not just one channel); US v. Bacon, 602 F.2d 1248 (7th Cir. 1979) (holding that remainder of witnesses statements supporting witness’ testimony on direct were admissible after statement used for impeachment on cross-examination by defense); US v. Rubin, 609 F.2d 51 (1980), cert granted.  100 S.Ct. 1645 (1980).

Purpose:

To permit contemporaneous introduction of recorded statements that place in context other writings, which, viewed alone, may be misleading. US v. Jamar, 561 F.2d 1103 (4th Cir. 1977).

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