36. Should the court permit the question?

When a witness tells a story at trial, the opposing lawyer will often confront him with a previous out-of-court statement, in which the witness told a different story. Such an impeachment use of an out-of-court statement is not hearsay, because the out-of-court statement is introduced not for the purpose of showing that it contains the truth, but rather, to suggest that a witness who changes his story is not credible.

The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, the accused may introduce evidence of his good character to show his innocence of the alleged crime.

Federal Rule of Evidence (FRE) 404(a)(2)(A) lists an exception to the rules governing character in criminal cases, specifically that «a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. .. .»

A defendant puts his character in issue by calling a qualified witness to testify to the defendant's good reputation (or that he has heard nothing bad) for the trait involved in the case. Under FRE 405, the witness may also give his personal opinion concerning the trait of the defendant. However, the witness may not testify to specific acts of conduct of the defendant to prove the trait in issue.

If the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may rebut by: (i) cross-examination into the basis for the opinion or knowledge of the reputation, and whether the witness has heard of particular instances of the defendant's misconduct; or (ii) calling its own character witness to testify to the defendant's bad reputation or their opinion of the defendant's character for the trait involved. Fed. R. Evid. 405.

C is correct. The court should permit the question because it is a proper method of impeachment. The defendant decided to call the witness to testify about the defendant's reputation for honesty, which constitutes «opening the door» to the prosecution discrediting the defendant's character for honesty. Under FRE 405, the prosecutor may rebut the witness by inquiring into specific instances of conduct on cross-examination as a way of undercutting the witness's basis of knowledge of the defendant's reputation. If the witness answers that she had not heard about the arrest, that admission could indicate that she is not very knowledgeable about the defendant's reputation in the community, because such an arrest would likely have had a negative effect on that reputation.

A is incorrect. The defendant need not testify to put his character at issue. By calling a witness for the purpose of establishing his reputation in the community for honesty, the defendant «opened the door» to attack on that issue. Under FRE 405, the prosecution may properly rebut the witness's testimony by inquiring into specific instances of conduct on cross-examination, as explained above.

B is incorrect. For purposes of testing the witness's knowledge of the defendant's reputation for honesty, the bad act need not have resulted in a conviction. An arrest is considered a specific instance of prior conduct which, if established, would be sufficient to have an impact on the community's view of the defendant's honesty.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The court should permit the question, but not because the earlier arrest is evidence of the defendant's guilt. This would be an improper use of character evidence, in the form of a prior bad act, to show conformity therewith under FRE 404. Rather, this question is permitted for impeachment purposes, not substantively, to attack the witness's basis of knowledge regarding the defendant's reputation for honesty.