FED. R. EVID. RULE 405, CHARACTER GENERALLY
Proof of character may be made by testimony as to reputation or by testimony in the form of an opinion.
Character of Witness [FED. R. EVID. RULE 404(a)(3)].
Evidence of the character of a witness may be proved where admissible pursuant to Rule 607, 608 and 609.
METHODS OF PROVING CHARACTER [FED. R. EVID. Rule 405
Reputation or Opinion:
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 by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. FED. R. EVID. Rule 405(a); U.S. v. Peterson, 553 F.2d 324 (3d Cir. 1977) (evidence that the defendant belonged to a pacifist church is not admissible to show character trait of non-violence).
Specific Instances of Conduct:
In cases in which character or a trait of character of a person is an essential element of charge, claim, or defense, proof may also be made of specific instances of his conduct. FED. R. EVID. Rule 405(b); U.S. v. Pantone, 609 F.2d 675 (3d Cir. 1979) (Rule 405 forbids use of specific instances of conduct to prove character unless character is an essential element of the offense charged); Posey v. State, 738 S.W.2d 321 (Tex.App. 1987) (when defense was defendant resisted excessive force, inquiry into prior use of stun gun by witness was proper).
PROOF OF CHARACTER [RULES 405(a) AND 608(a)]
Character may be proved either by reputation or opinion testimony. FED. R. EVID. Rules 405(a) (dealing with reputation or opinion as to character or trait of character generally); FED. R. EVID. 608(a) (dealing with reputation or opinion as to credibility).
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 the testimony adequately reflects the community’s assessment.” U.S. v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982) (noting some 2-3 month acquaintance with witness is insufficient even though the witness “lived in…the location …thirty-three years” and “worked with the [witness] every day”); Michelson v. U.S. , 335 U.S. 469, 478 (1948); U.S. v. Angello, 452 F.2d 1135, 1139-40 (2d Cir. 1971), cert. denied, 406 U.S. 922 (1972); U.S. v. Salazar, 425 F.2d 1384, 1286 (9th Cir. 1970);
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 eh [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 (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. 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.
Weinstein & Berger, Weinstein’s Evidence. ¶ 608 [04] (1988);
McCormick, Evidence, § 4, at 95 (1954); Wigmore, Evidence, §§ 1981-86 (3d Ed. 1940).
However, the enactment of FED. R. EVID. Rule 608(a) 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 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 in 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. 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.” 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).
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. U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979) [emphasis supplied].
POLYGRAPH EVIDENCE MAY NOW BE ADMISSIBLE
In 1993 the United States Supreme Court overruled the so-called Frye test, which required proof of “general acceptance” within the scientific community as a predicate for admission of expert scientific testimony, holding same had been superseded by the adoption of the Federal Rules of Evidence. Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).
“Given the Rule’s permissible backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.”
Thereafter, courts have held that previously excluded “scientific testimony” such as polygraph results may be admissible under the relaxed standards of the Federal Rules of Evidence under Daubert. U.S. v. Posado, 57 F.2d 428, (5th Cir. 1995).
“Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any purpose. [citations omitted] However, we now conclude that the rationale underlying this circuit’s per se rule against admitting polygraph evidence did not survive Duabert v. Merrell Dow Pharmaceuticals, Inc.
It is with a high degree of caution that we have today opened the door to the possibility of polygraph evidence in certain circumstances. We may indeed be opening a legal Pandora’s box. However, that the task is full of uncertainty and risk does not excuse us from our mandate to follow the Supreme Court’s lead. Rather, ‘mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.’ Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311, 1316 (9th Cir. 1995).
Nor are we unaware that our opinion today may raise as many questions as it answers. We leave much unsaid precisely because we believe that the wisdom and experience of our federal district judges will be required to fashion the principles that will ultimately control the admissibility of polygraph evidence under Daubert.”
See also U.S. v. Hart, 344 F.Supp. 522 (E.D.N.Y. 1971) (noting where prosecution conducts polygraph then ignores the results same are admissible over the objection of the prosecutor).
LIMITATION ON CROSS-EXAMINATION OF CHARACTER WITNESS
In U.S. v. Candelaria-Gonzalez, 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 defendant’s “indictment.” U.S. v. Candelaria-Gonzalez, 547 F.2d 291, 293 (5th Cir. 1977); by the offense on trial, Candelaria-Gonzalez, 547 F.2d at 294; or by what “a DEA Agent testified” to, Candelaria-Gonzalez, 547 F.2d at 294; as same “struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of “fair trial.” 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.” U.S. v. Candelaria-Gonzalez, 547 F.2d at 295.
Contra U.S. v. Oshatz, 704 F.Supp 511 (S.D.N.Y. 1989) (government could ask a fact witness, who had testified as to defendant’s honesty, to assume that the defendant omitted the acts giving rise to tax fraud charges and to indicate whether such facts would alter her opinion. The District Court found not reason to distinguish questioning the witness about wrongdoing that never resulted in an arrest or conviction and wrongdoing that was currently at issue).
