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<\/p>\nThe not-so-veiled threat made to Michael Cohen \u2013 \u201cDo your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if she\u2019ll remain faithful when you\u2019re in prison. She\u2019s about to learn a lot.\u201d – created an uproar and ultimately an apology of sorts.\u00a0 Whether the Congressman\u2019s words were meant to intimidate is a political and legal question, one intertwined with issues of intent and the protections granted by the Constitution\u2019s Speech and Debate Clause.\u00a0 But whether the \u2018cheating\u2019 is pertinent depends on Evidence law.<\/p>\n
In a trial, or in a Congressional hearing, it is fair to test a witness\u2019 credibility.\u00a0 Congress has no Rules of Evidence \u2013 but those applied at trial are informative and help the discussion of whether Cohen\u2019s having \u201cgirlfriends\u201d while married is fair game.<\/p>\n
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At trial, witnesses are required to take an oath or otherwise affirm that they will be truthful.\u00a0\u00a0 They are then asked to tell their story or otherwise share the information that they hold.\u00a0 To assess whether the oath has indeed produced accurate testimony, one permissible attack is to show that the witness has the character trait of being dishonest.<\/p>\n
The theory is one of a three-step reasoning process: some proof of dishonesty is offered; that proof is ruled sufficient to show that the witness has the character trait of being dishonest in general; and then the jury is permitted to conclude that if the witness is dishonest in general then it is likely that there is dishonesty in the story being offered at trial.<\/p>\n
The question for Congress is a step-two inquiry.\u00a0 Assuming it can be proved, or Mr. Cohen will admit, that he committed adultery, is that the type of act that proves his \u201ccharacter\u201d – a tendency to be dishonest about all things?\u00a0 The answer \u2013 at least in the courtroom \u2013 is \u201cno\u201d in Pennsylvania and \u201cmaybe\u201d in Federal trials.<\/p>\n
Why the difference, and why the \u201cmaybe?\u201d\u00a0 Pennsylvania\u2019s Rules of Evidence permit a witness\u2019 dishonest character to be shown by proof of crimen falsi<\/em> convictions \u2013 a record of theft, forgery, or other crimes of deception \u2013 or by testimony about the witness\u2019s reputation for being dishonest.\u00a0 The theory of the former is that even a single criminal act shows a general tendency to be untruthful; and the idea of reputation is that if many people describe the witness as dishonest there must be a good reason for it.<\/p>\n But Pennsylvania did not adopt one Rule of Evidence that the federal courts apply \u2013 Rule 608(b).\u00a0 That Rule permits a witness to be questioned about past conduct \u2013 cheating on a Bar exam, having multiple Social Security numbers, committed fraud in Government contracts \u2013 if<\/em> it is \u201cprobative of the character for\u2026untruthfulness\u2026\u201d<\/p>\n And the \u201cmaybe?\u201d\u00a0 There is no scientific measure for whether any one act, or even a series of acts, predicts or proves the character defect of being dishonest in general.\u00a0 If a person cheated on an exam, or stole from the grocery, there is no certainty and no ascertainable probability that the same person would testify dishonestly under oath.\u00a0 The decision is in the eyes of the Judge \u2013 and it is a guess.\u00a0 And at least as of 1999, many reported decisions said that adultery did not prove dishonest character.<\/p>\n A Congressional hearing does not apply the Rules \u2013 but the committee can decide topics are off-limits or of little value.\u00a0 Evidence law gives some, but not much, guidance.<\/p>\n Mr. Cohen is a self-described liar.\u00a0 His remarks prepared for Congress confess this:\u00a0 \u201cFor those who question my motives for being here today, I understand. I have lied, but I am not a liar. I have done bad things, but I am not a bad man. I have fixed things, but I am no longer your \u2018fixer,\u2019 Mr. Trump.\u201d<\/em> So whether he also engaged in adultery may be of little moment, because his past as an attorney already impugns his honesty \u2013 but his claims should also be judged by whether they can be corroborated and his motive(s) to testify now.<\/p>\n <\/p>\n This article is reprinted with permission from the March 15, 2019 issue of\u00a0 The LEGAL INTELLIGENCER. \u00a9 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited.\u00a0 All rights reserved.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The not-so-veiled threat made to Michael Cohen \u2013 \u201cDo your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if she\u2019ll remain faithful when you\u2019re in prison. She\u2019s about to learn a lot.\u201d – created an uproar and ultimately an apology of sorts.\u00a0 Whether the<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2319","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n