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29. How should the court proceed?
A defendant was charged with battery for allegedly attacking a man after the two of them left a local bar together. No one else witnessed the incident. At trial, each testified that he had acted only in self-defense. The defendant has called his next-door neighbor as a witness to testify to the defendant's reputation both for truthfulness and for peacefulness. The government has objected to the testimony in its entirety.
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FRE 405(a) governs the form of character evidence that the defendant may introduce to support his innocence, which includes «testimony about the person's reputation or by testimony in the form of an opinion.» In other words, 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. For example, the defendant's character for peacefulness may be at issue if he is accused of violent crime because it is relevant to his guilt or innocence. However, if his character for truthfulness is not directly relevant to the issue of guilt or innocence for the crime charged, it will not be admissible. FRE 608(a) allows character evidence as to truthfulness «after the witness's character for truthfulness has been attacked.»
B is correct. Testimonial evidence of the defendant's reputation for peacefulness is admissible under FRE 404(a)(2)(A) because it is in the proper form (reputation, not specific acts) and is directly relevant to whether he attacked the victim. However, the defendant's reputation for truthfulness is not at issue, and therefore, must be excluded.
A is incorrect. As explained above, reputation testimony as to the defendant's character for peacefulness is admissible. However, truthfulness is not a pertinent trait of character in a prosecution for battery, which is a crime of violence. Under FRE 608(a), evidence of truthfulness is allowed to rehabilitate a witness whose character for truthfulness has been questioned, but there is no indication that such a question has been raised here.
C is incorrect. Again, peacefulness is a pertinent trait of character in a prosecution for battery, and evidence of a defendant's reputation for peacefulness is admissible under FRE 404(a)(2)(A). Truthfulness is not a pertinent character trait here, which is why evidence of the defendant's truthfulness is inadmissible. Evidence of truthfulness would be admissible to rehabilitate under FRE 608(a), but only if the defendant's character for truthfulness as a witness had been questioned, which was not the case here.
D is incorrect. This answer is partially correct because, as explained above, evidence of the defendant's character for truthfulness is both irrelevant to the crime charged and not in response to a previous challenge to his credibility for truthfulness. However, the defendant's character for peacefulness, in the form of reputation testimony, is pertinent to the charge of battery and admissible here.