Edna the Eyewitness In a civil assault and battery action, the defense calls an eyewitness, Edna. She testifies that the defendant was not the first aggressor, but was merely defending himself. Can the plaintiff ask Edna on cross examination whether she had cheated on her exam in law school? Can the defendant on redirect ask Edna if she had received the Honest Abe Award at her company? Character for Truthfulness 608(a) and 404(a)(3) Rule 404(a) …..Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion….. Propensity Logic for Untruthfulness Witness was dishonest before Witness has dishonest character Witness is lying on the stand Ways to Show Untruthful Character Cross-examine about untruthful acts, 608(b) Introduce evidence of prior conviction, 609 Offer reputation or opinion testimony about untruthful character, 608(a) What is propensity? Previous conduct to prove character for that kind of conduct to prove conduct on this occasion Character for Truthfulness Rule 404(a) provides several exceptions to the character bar: 404(a)(3) is relevant today: Character of a witness. Evidence of the character of a witness, as provided by Rules 607, 608 and 609 FRE 608(a) specifically provides that a witness’s truthfulness or untruthfulness can be proven by opinion or reputation evidence Consider the following: The prosecutor calls Charlie (an eyewitness and the “primary” or “fact” witness), who testifies that he saw the defendant running away from the bank holding a sack of money and a gun. The defense attorney asks no questions. Can the prosecutor now call a character witness to testify about how truthful Charlie is? Bank Robbery Continued Can the defendant call a character witness to testify about how untruthful Charlie is? The defense’s character witness begins by testifying: “I’ve known Charlie for ten years and I know that he can’t be trusted in any important manner.” Is this proper? The defense’s character witness continues: “For example, three years ago Charlie was working the cash register at work, and he stole twenty dollars every week. ” Is this proper? Bank Robbery Continued The prosecutor cross-examines the defense’s character witness by asking: “You testified on direct that Charlie is not truthful. Were you aware that four years ago, he found a wallet full of cash and he turned it into the police station without taking any of the money?” Is this appropriate? What if the prosecutor then says: “I’d like to admit the police record of this event into evidence…” Proper? Bank Robbery Continued Can the prosecutor now call a character witness to testify about how truthful Charlie is? The prosecution’s character witness testifies on direct. “I’ve lived in Charlie’s neighborhood for fifteen years and I know his reputation in the community. Everyone thinks he is very trustworthy and would believe anything he says.” Is this appropriate? Bank Robbery Continued The prosecution’s character witness continues: “For example, one day he hit my neighbor’s parked motorcycle with his car, and he immediately went to the neighbor…” Proper? Bank Robbery Continued The defense attorney cross-examines the prosecution’s character witness by asking: “You testified that Charlie has a good reputation for honesty in your community. Were you aware of the time that he stole money from his sister in order to make a payment on his car?” Is this permissible? If the character witness denies any knowledge of the theft, can the defense attorney call Charlie’s sister to testify about it? Defense Continued Cross Examination of prosecution’s character witness Can the defense attorney ask the character witness, “Did you know that Charlie has a conviction for loitering?’ Can the defense ask this witness, “Were you aware that Charlie was accused of stealing money from the cash register at work?” Can the defense ask the prosecution’s character witness if he has a conviction for assault with a deadly weapon? Can the defense ask the character witness if Charlie was the victim of that assault? If the witness denies these facts, which, if any, can be proven by extrinsic evidence? Offering Character Evidence . How do you choose a character witness? . What foundation do you need to qualify the character witness? Offering Character Evidence . How do you choose a character witness? . What foundation do you need to qualify the character witness? The Final Foundational Element Have you had an opportunity to form an opinion about the witness’s character for truthfulness? Are you familiar with the witness’s reputation for truthfulness? [He/she] has a very untruthful character What is your opinion of the witness’s truthfulness? [He/she] has a reputation of being very untruthful What is the witness’s reputation for truthfulness? Cross-Examination Positive Character Witness In my opinion, she is utterly honest Positive Character Witness Cross-Examination Character for Truthfulness 404(a)(3) allows character evidence 608(a) permits the credibility of a witness to be attacked or supported by evidence in the form of opinion or reputation but limited to: reference to character for truthfulness or untruthfulness truthful character only admissible after credibility has been attacked A Parade of Character Evidence Clark is prosecuted for perjury. He offers Lenny, his best friend since grade school who states: “Clark’s Reputation in the community is for compete honesty, he would never lie.” A Parade of Character Evidence The Prosecutor asks Lenny: “Have you heard that 2 years ago Clark was expelled from night school for cheating on an exam?” Permissible? Form correct? A Parade of Character Evidence After Lenny leaves the stand, the Prosecution calls Sheila in rebuttal. Sheila testifies: “In my opinion, Lenny is a liar. Everyone in this community knows that Clark has a reputation for no veracity at all.” The defense then calls, George and on direct examination he says: In my opinion, Sheila is a liar In any event, Lenny has a reputation for unimpeachable honesty? Rehabilitation of Witnesses 608(a): Evidence of truthful character is only admissible after the character of the witness for truthfulness has been attacked… Is the evidence offered in the form of opinion or reputation? Does it deal with truthfulness or untruthfulness? If truthfulness, has the witness’ credibility been attacked? When has a witness’ credibility been attacked? Generally, one can rehabilitate a witness When there is a negative character witness or When the witness was impeached by prior bad acts, or criminal convictions How about here? The plaintiff sued a police officer, claiming that the officer engaged in wrongful, corrupt conduct. Should the defendant be allowed to present evidence of truthful character? Character Witnesses on Another Witness’s Character for Truthfulness Must relate to a witness Must relate to truthfulness Reputation or opinion evidence on direct Cross-examination on specifics No extrinsic evidence of specifics Testimony on good character only after character attacked Limited Purpose Jury should consider only to assess witness’s character for truthfulness Rule 105: Limiting instruction Rule 403: Exclude if unfair prejudice substantially outweighs probative value Cross-examination of Character Witnesses Rule 405 allows inquiry into relevant specific acts of conduct on cross- examination. The purpose of such inquiry is to test the basis for the opinion or reputation testimony. A Thought Experiment Do these character rules make sense? What are the justification for them? Does This Make Sense? Specific incidents sound persuasive, how much do they really reveal? If a character witness testifies that the primary witness told one lie three years ago, is that enough to distrust the fact witness? Everyone has told a lie at some point. How many specific lies or instances of fraudulent activity does the character witness have to describe before the jurors believe that they cannot trust the primary witness? This problem is even worse for positive character witnesses. How many truthful statements would the positive witness have to report to satisfy the jury? General Reasons for the Rule The witness is under oath The specific acts are collateral and will take the jury away from the case at hand There just isn’t enough time Rule 610 Religious beliefs are not admissible to attack or support a witness’s credibility What if a witness wears religious insignia? Religious beliefs and impeachment Sister Margaret O’Brien is a complainant in a sexual assault case. She comes to the courtroom in a full habit and holding rosary beads. Does Rule 610 restrict a witness’s ability to wear religious attire? What facts would you like to know to assess this? As a matter of trial strategy, if the witness has the same religious belief as the majority of the jury, should the attorney encourage the witness to wear religious attire?/ How about conversely, if the witness is a member of a minority religious faith, should the attorney discourage the witness from wearing their religious attire in the courtroom? Religious beliefs and impeachment In a criminal case in which the defendant is charged with violating a protection order because he called his wife on the phone and threatened to beat her. Can he present evidence that he belongs to a religious sect that teaches that women should be subservient and that any woman who refuses to obey her husband/master deserves a physical beating? Religious beliefs and impeachment What if the witness belongs to the same religious congregation as one of the parties in the case? Is there a difference between membership and beliefs? What if a witness belongs to the same religious sect as a party and the sect teaches its members that it is an sin to “bear witness’ against a fellow member? What does the rule say? Is there a difference between credibility and character for truthfulness? The Rule Applied Can a lawyer ask a witness whether he attended church regularly last year?.