<\/p>\n
Pennsylvania law, as does federal, permits a person accused of a crime to \u2018defend\u2019 in part by proving their \u2018good\u2019 character, limited to the pertinent trait.\u00a0 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.\u00a0 The method of proof is by reputation in Pennsylvania (a permitted form of hearsay) \u2013 the character witness details what they have heard about the accused, with the typical response being \u201ceveryone says\u201d or \u201cpeople say\u201d that defendant X is [fill in the trait] \u2013 and in federal it is reputation or opinion, the \u201cI believe that defendant has [fill in the trait].<\/p>\n
And character testimony may be challenged on cross-examination.\u00a0 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.<\/em>, \u201cyou only know X from school and not from the playground\u2026\u201d]; 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.\u00a0 It has to be trait-related and not too old.\u00a0 This is not to prove \u2018bad\u2019 character but to attack the claim of \u2018good\u2019 character.<\/p>\n The witness is asked \u201care you aware\u201d or \u201chave you heard\u201d that defendant X was convicted in 2018 of [name of crime].\u00a0 The theory is simple if not simplistic:\u00a0 if the witness says \u201cyes, I\u2019ve heard of that conviction\u201d then the prosecutor, in closing argument, may question that witness\u2019 standards.\u00a0 \u201cMembers of the jury, how can you trust a witness who says the defendant is a nonviolent person when they admit they\u2019re aware\u2019 of the conviction for assault?\u201d<\/p>\n And if the person says \u201cno, I never heard about that conviction,\u201d the prosecution thesis in closing argument is simple.\u00a0 \u201cMembers of the jury, they simply don\u2019t listen well enough to really know what there is to know about this defendant.\u201d\u00a0 Or, as stated by the United States Supreme Court in 1948, \u201c[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.”\u00a0 Michelson v. United States,<\/em> 335 U.S. 469, 483 (U.S. 1948).\u00a0 [Michelson <\/em>permits inquiry into arrests as well as convictions; Pennsylvania restricts inquiry to convictions.]<\/p>\n But the \u201cno, I never heard of that\u201d answer generates the conundrum.\u00a0 The Rules of Evidence do not permit the prosecutor to offer independent proof of the conviction \u2013 they may simply ask \u201chave you heard about\u2026\u201d or \u201cdo you know\u201d [the latter for opinion witnesses]. The \u201cno\u201d answer does not adopt or accept the existence of the conviction.\u00a0 Thus, there is no proof that there was<\/em> a conviction the character witness should have heard of.<\/p>\n And the conundrum?\u00a0 Prosecutors may argue in closing only facts proved at trial and reasonable inferences therefrom.\u00a0 And everyone knows the old phrase that \u201cquestions are not evidence.\u201d\u00a0 So, if there is no proof of that conviction, how then may a prosecutor argue \u201cyou can\u2019t believe or rely on the character witness since they never heard of the defendant\u2019s earlier conviction.\u201d\u00a0 The \u201cconviction\u201d that there is no proof of.<\/p>\n Is this an unintended gap in the Rules of Evidence?\u00a0 Probably.\u00a0 But if we are going to have trials that follow rules, the \u201cI never heard that\u201d answer should preclude prosecution argument that the character witness\u2019 knowledge is deficient since there is no proof that the conviction exists.\u00a0 No court has addressed this conundrum \u2013 it is up to lawyers to raise it.<\/p>\n","protected":false},"excerpt":{"rendered":" Pennsylvania law, as does federal, permits a person accused of a crime to \u2018defend\u2019 in part by proving their \u2018good\u2019 character, limited to the pertinent trait.\u00a0 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<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[330],"class_list":["post-3747","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog"],"yoast_head":"\n