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3. The prosecution witness's testimony should be
At the defendant's trial for stealing an automobile, the defendant called a character witness who testified that the defendant had an excellent reputation for honesty. In rebuttal, the prosecutor calls another witness to testify that he recently saw the defendant cheat on a college examination.
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If the defendant puts her character at issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may rebut in the following manner: (i) by calling its own character witness to testify to the defendant's bad reputation or their opinion of the defendant's character for the particular trait involved; and (ii) on cross-examination, by inquiring whether the reputation witness knows or has heard of particular instances of the defendant's misconduct pertinent to the trait in question. Fed. R. Evid. 405(a).
D is correct. In all cases in which evidence of character or a trait of character of a person is admissible but not essential, such as in this case, proof of that trait may be made by testimony regarding reputation. The defendant opened the door on his character by calling the witness to testify regarding his reputation for honesty. However, in rebuttal, the prosecution may only inquire into specific instances of the defendant's misconduct on cross-examination of the character witness. Because the defendant's honesty is not an essential element of the charge, the prosecutor cannot use specific incidents of conduct to show that the defendant is guilty. See Fed. R. Evid. 608 (b).
A is incorrect. Even though the defendant «opened the door» regarding the defendant's character for honesty, the prosecutor cannot use specific incidents of prior misconduct to rebut the character evidence testimony given by the defendant's witness, except on cross-examination. Fed. R. Evid. 608 (b).
B is incorrect. Although the defendant's cheating on a college exam involved dishonesty or false statement, it is nevertheless a specific instance of misconduct, not a prior conviction, reputation, or opinion evidence. As such, it may not be introduced extrinsically through a rebuttal witness, it may only be inquired into on cross-examination.
C is incorrect. By calling a witness to testify about the defendant's reputation for honesty, the defendant made his character relevant to the case. Thus, a specific instance of dishonesty would certainly be probative on that issue. The evidence is excluded, however, not because it is irrelevant or non-probative, but because specific instances of dishonest conduct cannot be used to show that the defendant is guilty.