24. Is the prosecutor's question proper?

The defendant, a young doctor, was charged with falsely claiming deductions on her federal income tax return. At trial, a witness testified for the defendant that she has a reputation in the community for complete honesty. After a sidebar conference at which the prosecutor gave the judge a record showing that the defendant's medical school had disciplined her for altering her transcript, the prosecutor proposed to ask the witness on cross-examination: «Have you ever heard that the defendant falsified her medical school transcript?»

No, because it calls for hearsay not within any exception
No, because its minimal relevance on the issue of income tax fraud is substantially outweighed by the danger of unfair prejudice
Yes, because an affirmative answer will be probative of the defendant’s character trait for dishonesty and, therefore, her guilt
Yes, because an affirmative answer will impeach the witness’s credibility

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D is correct. The incident can be offered on cross-examination of the character witness, the proper purpose being to show that the witness's assessment of the defendant's character for honesty is not credible. The intent of the question is to test the witness's knowledge of the defendant's reputation on the one hand, and the quality of the community on the other. If the witness hasn't heard about the falsification, he might not be very plugged in to the community and so might be a poor reputation witness. On the other hand, if the witness answers «yes,» then the jury might infer that the community in which the defendant has a reputation for complete honesty may be setting the honesty bar pretty low. In either case, the alleged falsification is probative impeachment whether or not it occurred. Note that the courts require that the cross-examiner must have a good faith belief that the event actually occurred before inquiring into the act on cross-examination. In this case, that good faith standard is met by the evidence presented at the sidebar conference that the defendant was disciplined in medical school.

A is incorrect. The question does not call for a statement that would be used for its truth. Therefore, it is not hearsay.

B is incorrect. The alleged incident is not offered to prove income tax fraud. Rather, the intent of the question is to test the witness's knowledge of the defendant's reputation on the one hand, and the quality of the community on the other.

C is incorrect. Federal Rule of Evidence 405 prohibits evidence of specific acts indicative of a person's character when that character evidence is offered to prove that a person acted in accordance with the character trait on the occasion in question at trial. Thus, the prosecutor may not introduce the incident involving the medical school transcript for the inference that, because the defendant acted dishonestly on that occasion, she likely acted dishonestly with regard to her tax return.

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24. Is the prosecutor's question proper?

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