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METHODS OF PROVING CHARACTER [FED. EVID. Rule 405]

1381-82 (11th Cir. 1982) [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. U.S., 335 U.S. 469, 478 (1948); U.S. v. Augello, 452 F.2d 1135, 1139-40 (2d Cir. 1971), cert. denied, 406 U.S. 922 (1972); U.S. 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. U.S., 335 U.S. 469, 478, 69 S.Ct. 213 (1948).

See also           Arocha v. State, 495 SW.2d 958 (Tex.Cr.App. 1973) [community is not limited to the locale where the case is tried nor defendant’s residence at the date the offense was committed]. And the trial court’s determination regarding the adequacy of the foundation for a reputation witness is ordinarily not overturned on appeal, Michelson v. U.S., 335 U.S. 469, 480-81 (1948); without demonstrating an abuse of discretion. U.S. 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. 3 WEINSTEINS, EVIDENCE & 608[04], at 608-20 (1978); See generally

MCCORMICK, EVIDENCE ‘ 44 at 95 (1954); WIGMORE, EVIDENCE ” 1981-86 (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 or reputation“. FED. R. EVID. Rule 608(a); U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

Under new FED. R. EVID. Rule 608(a), no foundation regarding length of acquaintance or recent information such as that required for reputation testimony is required for opinion testimony, U.S. v. Lollar, 606 F.2d 587 (5th Cir. 1979); U.S. 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. U.S. 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.'” U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982).

See also   U.S. v. Townsend, 31 F.3d 262 (5th Cir. 1994) [Rule 608(b) providing that a witness may be questioned about specific instances of conduct to attack the witness reputation for truthfulness] at 268. U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

This distinction between the foundations required for reputation as opposed to opinion testimony “follows from an analysis of the nature of the evidence involved”. U.S. 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”. U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

“The reputation witness must have sufficient acquaintance with the principle 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.”

U.S. v. Watson, 669 F.2d 1574, 1582 (11th Cir. 1982).

But see

U.S. v. Dotson, 799 F.2d 189 (5th Cir. 1986) [opinion testimony by an investigating officer as to truthfulness of a party cannot be based solely on information gathered by the investigating officers].

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.” (emphasis added) U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979).

HABIT: ROUTINE PRACTICE FED. R. EVID. RULE 406

Evidence of the habit of a person or of the routine practices of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Reyes v. Missouri Pacific R. Co., 589 F.2d 791 (5th Cir. 1979) [intemperance of defendant not raised to level of habit or routine (four prior convictions for public intoxication spanning three and one-half year period)]; U.S. v. Petsas, 592 F.2d 525 (9th Cir.), cert. denied, 442 U.S. 910 (1979) [defendant’s contention that he routinely acted honestly is matter of character evidence as to same not, habit or routine under Rule 406 which would allow him to prove conduct on a particular occasion was in conformity with same].

See      U.S. v. West, 22 F.3d 586, 592 (5th Cir. 1996) [finding that “Rule 406, on its face, applies in only two instances: (1) to show that an individual acted in conformity with his or her habit, and (2) to show that an organization acted in conformity with its routine practice.”]

LIMITATION ON CROSS-EXAMINATION OF CHARACTER WITNESS

In U.S. v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977), the Fifth Circuit Court held it was reversible error to permit a prosecutor to inquire of a defense character witness whether his opinion would be affected by the defendants “indictment”, at p. 293, by the offense on trial or by what “a DEA Agent testified” to as same “struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of ‘fair trial.'” U.S. v. Candelaria- Gonzalez, 547 F.2d at 294. One cannot so elevate Government witness’ testimony “to the status of accepted fact” as “the presumption of innocence [is] destroyed in the process.” Id. at 295.

COMPROMISE AND OFFERS TO COMPROMISE RULE 408 AND THE 2006 UPDATES

Effective December 1, 2006, Federal Rule of Evidence 408 Compromise and Offers to Compromise will be amended. The rule is being changed, as the Committee Notes explain, Ato settle some questions in the courts about the scope of the Rule, and to make it easier to read. A few of the changes include:

First, the amendment provides that Rule 408 does not prohibit the introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil dispute by a government regulatory, investigative, or enforcement agency. See, e.g., United States v. Prewitt, 34 F.3d 436, 439(7 th Cir. 1994).

Statements made in compromise negotiations of a claim by a government agency may be excluded in criminal cases where the circumstances so warrant under Rule 403.

In contrast, statements made during compromise negotiations of other disputed claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims.

The amendment prohibits the use of statements made in settlement negotiations when offered to impeach by prior inconsistent statement or through contradiction.

The amendment makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations.

In criminal cases, the concern is that statements of fault made during civil negotiations can be used in a subsequent criminal trial. Part of the success of settlements is that the current Rule 408 assured parties that anything they said could not be subsequently used against them.

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