SERIES 300 EVIDENCE
F 351 Cross-Examination of Character Witness
TABLE OF CONTENTS
F 351 Inst 1 (a-e) Good Character Of Defendant: Limitation On Jury‘s Consideration Of Rebuttal Witnesses Offered By Prosecution
F 351 Inst 2 (a & b) Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation
F 351 NOTES
F 351 Note 1 Assaultive Character Of Victim
F 351 Note 2 Rebuttal Of Defendant‘s Good Character Evidence With “Have You Heard” Questions
F 351 Note 3 Cautionary Instruction Should Be Timely And Should Remind The Jurors Of Their Ultimate Responsibility To Decide The Case
F 351 Note 4 Strategy Note: Develop The Factual Basis For The Character Witness’s Testimony
F 351 Note 5 Propriety Of Guilt Assuming Hypothetical Questions
Return to Series 300 Table of Contents.
F 351 Inst 1 (a-e) Good Character Of Defendant: Limitation On Jury’s Consideration Of Rebuttal Witnesses Offered By Prosecution
*Add to CC 351:
Alternative a:
The defense called witnesses who testified regarding the good reputation of the defendant. The district attorney cross-examined these defense character witnesses as to [whether or not they heard people in the [community] [neighborhood] say that the defendant had been convicted of some other offense] [______________].
This cross-examination was permitted for one purpose only. That was for the purpose of providing evidence which might help you judge whether the defense character witnesses are really familiar with the defendant’s reputation and whether, in their testimony, they gave you an accurate description of his reputation. The evidence brought out by the district attorney’s cross-examination must not be considered by you in deciding whether he is guilty or not guilty in any way other than for the purpose I just stated. In particular, I caution you that you must not consider this evidence as proof that the defendant is a person of bad character, or has committed the crime charged or any other offense.
[See generally Commonwealth v. Jenkins (PA 1964) 198 A2d 497, 498; Commonwealth v. Scott (PA 1981) 436 A2d 607, 611-12; cf. Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.07 [Defendant’s Character (Reputation), Cross Examination Of Character Witness] (Pennsylvania Bar Institute, PBI Press, 01/83).]
Alternative b:
After (W) testified about [e.g.: the defendant’s reputation for honesty; his opinion of the defendant’s honesty], ___________, the government attorney asked (W) some questions about whether (W) knew that (D) had been [e.g.: convicted of fraud on an earlier occasion]. These questions were asked of (W) only to help you decide if he really knew about the defendant’s [e.g.: reputation for honesty; honesty].
The possibility that the defendant may have [e.g.: committed other crimes] is not evidence that he committed the crime of ________. I remind you that the government must prove that the defendant committed this crime, and must prove it beyond a reasonable doubt.
[Source: Federal Judicial Center, Pattern Criminal Jury Instructions Inst. No. 52 [Cross-Examination Of Defendant’s Character Witness: Jury To Limit Consideration Of Information] (1988).]
Alternative c:
I allowed the prosecutor to ask the defendant’s character witness[es] if [he] [she] [they] had heard that the defendant had engaged in certain alleged conduct. These “have you heard“ questions and their answers are not evidence that the defendant engaged in the alleged conduct. You may only consider these questions and answers to evaluate the testimony of the character witness[es].
[See Federal Judicial Center, Pattern Criminal Jury Instructions Inst. No. 52 [Cross-Examination Of Defendant’s Character Witness: Jury To Limit Consideration Of Information] (1988); see also Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.07 [Defendant’s Character (Reputation), Cross Examination Of Character Witness] (Pennsylvania Bar Institute, PBI Press, 01/83); South Dakota Pattern Jury Instructions—Criminal, SDCL 1-15-12 [Witnesses—Cross Examination Of Character Witness] (State Bar of South Dakota, 2000).]
Alternative d:
Witness ___________ was asked if [he] [she] had heard of reports of certain alleged conduct of the defendant inconsistent with the traits of good character about which the witness testified. These “have you heard“ questions and the witness’s answers may only be considered for the purpose of evaluating the opinion of the witness.
These questions and answers are not evidence that the alleged reports are true. Do not speculate from them that the defendant committed the alleged conduct.
[See Federal Judicial Center, Pattern Criminal Jury Instructions Inst. No. 52 [Cross-Examination Of Defendant’s Character Witness: Jury To Limit Consideration Of Information] (1988); see also South Dakota Pattern Jury Instructions—Criminal, SDCL 1-15-12 [Witnesses—Cross Examination Of Character Witness] (State Bar of South Dakota, 2000); see also Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 3.07 [Defendant’s Character (Reputation), Cross Examination Of Character Witness] (Pennsylvania Bar Institute, PBI Press, 01/83).]
Alternative e:
The prosecution was allowed to ask defendant’s character witness certain questions on cross-examination. You are not to assume that the acts described in those questions are true. Nor may you consider them as evidence that the defendant committed the crime for which he is charged. You may only consider those questions in deciding what weight, if any, to give to the testimony of the character witness and for no other purpose.
[Source: See generally United States v. Scotto (2nd Cir. 1980) 641 F2d 47; cf., Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 5-16, p. 5-44.]
Points and Authorities
When the prosecution offers rebuttal evidence to the defendant’s good character evidence, instruction may be required so the jury understands that such evidence may not be used as propensity evidence to conclude that the defendant likely committed the charged offense.
When the prosecution impeaches a defense character witness with “have you heard“ questions, the trial court has a “heavy responsibility … to protect the practice from any misuse.“ (Michelson v. United States (1948) 335 US 469, 479 [69 SCt 213; 93 Led 168]; see also United States v. Birney (2nd Cir. 1982) 686 F2d 102.) Specifically, cautionary instructions should be given. (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 5-16, Comment, p. 5-45.) “Witnesses attesting the good reputation of an accused may, as affecting the weight, credibility, and sincerity of their testimony, be asked upon cross-examination as to whether they had heard of acts of the accused inconsistent with that reputation. … However, [the prosecution] is expressly prohibited from conducting the cross-examination or framing the interrogatories so as to show specific acts of misconduct on the part of the accused or that he has, in fact, been guilty of such acts.“ (Pitcock v. State (TX 1959) 324 SW2d 855, 856.)
Accordingly, the jury should be admonished that reputation evidence elicited on cross-examination “is admitted for the sole purpose of testing the accuracy or credibility of the witness and not as substantive evidence of defendant’s guilt. [Citations.]“ (Laine v. Commonwealth (KY 1941) 151 SW2d 1055, 1057; see also Commonwealth v. Scott (PA 1981) 436 A2d 607, 611-12; Commonwealth v. Jenkins (PA 1964) 198 A2d 497.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 351 Inst 2 (a & b) Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation
*Add to CC 351:
Alternative a:
You have heard the testimony of _______, who was a witness in the (government’s) (defense) case. You also heard testimony from others concerning (their opinion about whether he is a truthful person) (his reputation in the community where he lives, for telling the truth.) It is up to you to decide from what you heard here whether ______ was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning his (reputation for) truthfulness.
[Source: Federal Judicial Center, Pattern Criminal Jury Instructions Instruction 31 [Impeachment By Evidence Of Untruthful Character] (1988).]
Alternative b:
You have heard the testimony of _______. You also heard testimony from others concerning [their opinion about whether that witness is a truthful person or the witness’s reputation, in the community where the witness lives, for telling the truth]. It is up to you to decide from what you heard here whether _______ was telling the truth in this trial. In deciding this, you should bear in mind the testimony concerning the witness’s [reputation for] truthfulness, as well as all the other factors already mentioned.
[Source: 5th Circuit Pattern Jury Instructions—Criminal 1.13 [Impeachment By Evidence Of Untruthful Character] (1997).]
Points and Authorities
Without a cautionary instruction, the jurors may not understand that it is still up to them to decide the credibility of the witness even if he or she has been impeached by evidence of untruthful character.
On occasion a witness may testify as to the character of another witness for untruthfulness. For example, under FRE 608(a) a witness may give his opinion of the character of the other witness for truthfulness, and not only state the reputation. While argument of counsel will often cover this point, in some circumstances special instruction may be appropriate. (See Federal Judicial Center, Pattern Criminal Jury Instructions 31 [Impeachment By Evidence Of Untruthful Character] commentary (1988); see also 5th Circuit Pattern Jury Instructions—Criminal 1.13 [Impeachment By Evidence Of Untruthful Character] (1997); Wharton’s Criminal Evidence & 4:24, pp. 380-84 (West, 14th Ed. 1986).)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 350 NOTES
F 351 Note 1 Assaultive Character Of Victim
[See FORECITE F 505.4 Inst 1 ; F 5.12d and FORECITE F 505.4 Inst ; F 5.12e.]
F 351 Note 2 Rebuttal Of Defendant’s Good Character Evidence With “Have You Heard“ Questions
PRACTICE NOTE: Evidence of the defendant’s good character, once put in issue by the defendant, may be rebutted by the prosecution. (See e.g., People v. Harris (IL 1992) 587 NE2d 47, 49; see also Johns v. U.S. (DC App. 1981) 434 A2d 463, 469.)
For example, where the defendant “initially introduces evidence that the victim had a violent character and that he [defendant] was a peaceful person, the interests of fairness require that the prosecution be allowed to rebut this portrayal by the defendant.“ (People v. Devine (IL 1990) 557 NE2d 953, 957.) Devine reaffirmed the general rule that evidence of a defendant’s violent character to prove he acted in conformity with that character may be introduced by the state “only if the defendant first opens the door by introducing evidence of [his] good character to show that he was a quiet and peaceful person.“ (Ibid.; see also People v. Hurd (1970) 5 CA3d 865, 879; Hedicke v. State (TX 1989) 779 SW2d 837, 839 [right to cross-examine reputation witnesses with questions regarding whether the witness has heard acts or reports which are inconsistent with the witness’s opinion].)
F 351 Note 3 Cautionary Instruction Should Be Timely And Should Remind The Jurors Of Their Ultimate Responsibility To Decide The Case
See U.S. v. Oshatz (2nd Cir. 1990) 912 F2d 534, 541 [improper guilt-assuming questions were not prejudicial due to the judge’s prompt cautionary instruction pointing out the limited purpose of the questions and reminding the jurors of their ultimate responsibility to determine whether the defendant had been proved guilty beyond a reasonable doubt].
F 351 Note 4 Strategy Note: Develop The Factual Basis For The Character Witness’s Testimony
Studies show that juries are more influenced by character testimony that has a developed factual basis rather than just calling witnesses who say, “The defendant has a good character.” In fact, such witnesses may actually be damaging as one study found: “[Family and friends testimony was effective only when presented in sufficient detail so as to present a coherent and full factual picture of the defendant. Without such a factual backdrop, the jury was likely to view such character testimony derisively, as an effort to manipulate them[].]” (Scott Sundby, “The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony,” 83 Va. L. Rev 1109, 1161 (1997).)
F 351 Note 5 Propriety Of Guilt Assuming Hypothetical Questions
While “have you heard” questions of a defense good character witness are permissible (People v. Clair (1992) 2 CA4th 629, 684), the question should not be asked in a form that assumes the defendant is undisputably guilty. Such questions are a form of improper prosecutorial vouching. (See People v. Huggins (2006) 38 CA4th 175, 206-207 [“it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] . . . Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record”].)
Moreover, because they are highly prejudicial and undermine the presumption of innocence, guilt-assuming hypotheticals violate the Due Process Clauses of the state and federal constitutions. (See U.S. v. Shwayder (9th Cir. 2002) 312 F3d 1109, 1121 [“following almost every other circuit that has addressed the question, we now hold that the use of guilt assuming hypotheticals undermines the presumption of innocence and thus violates a defendant’s right to due process”]; see also U.S. v. Guzman (11th Cir. 1999) 167 F3d 1350; U.S. v. Oshatz (2nd Cir. 1990) 912 F2d 534; U.S. v. Morgan (2nd Cir. 1977) 554 F2d 31.)
