Pennsylvania law, as does federal, permits a person accused of a crime to ‘defend’ in part by proving their ‘good’ character, limited to the pertinent trait.  If the crime is robbery or assault, the defense is that the accused is non-violent; and if the crime charged is forgery or theft, that the person is honest.  The method of proof is by reputation in Pennsylvania (a permitted form of hearsay) – the character witness details what they have heard about the accused, with the typical response being “everyone says” or “people say” that defendant X is [fill in the trait] – and in federal it is reputation or opinion, the “I believe that defendant has [fill in the trait].

And character testimony may be challenged on cross-examination.  The character witness may be shown to be biased, closely related to the accused; the character witness may be shown to know the accused in only a limited way [e.g., “you only know X from school and not from the playground…”]; and the character witness may be asked whether they have heard or know that the defendant has a criminal conviction for an offense that would be contrary to the character trait being asserted.  It has to be trait-related and not too old.  This is not to prove ‘bad’ character but to attack the claim of ‘good’ character.

The witness is asked “are you aware” or “have you heard” that defendant X was convicted in 2018 of [name of crime].  The theory is simple if not simplistic:  if the witness says “yes, I’ve heard of that conviction” then the prosecutor, in closing argument, may question that witness’ standards.  “Members of the jury, how can you trust a witness who says the defendant is a nonviolent person when they admit they’re aware’ of the conviction for assault?”

And if the person says “no, I never heard about that conviction,” the prosecution thesis in closing argument is simple.  “Members of the jury, they simply don’t listen well enough to really know what there is to know about this defendant.”  Or, as stated by the United States Supreme Court in 1948, “[i]f one never heard the speculations and rumours in which even one’s friends indulge upon his arrest the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation.”  Michelson v. United States, 335 U.S. 469, 483 (U.S. 1948).  [Michelson permits inquiry into arrests as well as convictions; Pennsylvania restricts inquiry to convictions.]

But the “no, I never heard of that” answer generates the conundrum.  The Rules of Evidence do not permit the prosecutor to offer independent proof of the conviction – they may simply ask “have you heard about…” or “do you know” [the latter for opinion witnesses]. The “no” answer does not adopt or accept the existence of the conviction.  Thus, there is no proof that there was a conviction the character witness should have heard of.

And the conundrum?  Prosecutors may argue in closing only facts proved at trial and reasonable inferences therefrom.  And everyone knows the old phrase that “questions are not evidence.”  So, if there is no proof of that conviction, how then may a prosecutor argue “you can’t believe or rely on the character witness since they never heard of the defendant’s earlier conviction.”  The “conviction” that there is no proof of.

Is this an unintended gap in the Rules of Evidence?  Probably.  But if we are going to have trials that follow rules, the “I never heard that” answer should preclude prosecution argument that the character witness’ knowledge is deficient since there is no proof that the conviction exists.  No court has addressed this conundrum – it is up to lawyers to raise it.

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