T3BE – Answer
Andrew: Yeah, so this is a character evidence question. It was a defendant charged with the crime of defrauding the federal agency where he worked as an accountant. At trial, the court allowed the defendant to call his supervisor at the large corporation where he had previously worked, who testified about the defendant’s good reputation in the community for honesty. Then the defendant sought to elicit testimony from that witness that on several particular occasions the corporation had, without incident, entrusted him with large sums of money. Should that testimony be permitted?
Here we get into – this is an area that is another incredibly difficult-
Thomas: Well I don’t like the sound of this. Alright.
Andrew: -evidence question, yeah. Because the question is, is character evidence admissible and if so in what form? That is Rules 404 and 405 of the Federal Rules of Evidence. In general, character evidence is not admissible.
Andrew: Here’s what Rule 404(a) says, (a)(1): “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”
Andrew: That makes sense, right? If you think about it you wouldn’t want the prosecutor to be able to put on evidence that’s like “eh, this guy lies all the time so he probably lied in this case.” You want to prove the specific instance of the particular crime, even if it’s just a civil suit saying hey, this is the kind of guy who does the kind of things that he’s being charged with, that feels a little bit like a shortcut for “we don’t care if he’s that kind of guy, we care did he do this actual thing?”
However, Rule 404(a)(2) provides exceptions for defendants or victims in a criminal case. It says, in pertinent part, “a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.”
Andrew: So, what the hell is a pertinent trait? Well, a pertinent trait is something that is relevant to the elements of the offense. Here, for example, a reputation for honesty would in fact be a pertinent trait-
Andrew: -when you are a criminal defendant who is charged with fraud. That is why the second sentence says at trial, the court does allow the defendant to call his supervisor to testify as to his reputation, good reputation in the community for honesty.
Now the question is, while that former supervisor is on the stand, what kinds of questions can the defense counsel ask? From there we go from Rule 404 to Rule 405, which is Methods of Proving Character.
Andrew: There are two rules here. Subsection (a), “when evidence of a person’s character or character trait is admissible,” (such as here) “it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.”
Andrew: “On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.”
Then subsection (b), which is the pertinent rule here, “When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.”
Andrew: So put all of that together, Thomas, you answered C and in fact you said of the no answers, B is the best no answer. It is in fact B. When you have a pertinent character trait such as honesty for a charge such as fraud, whether you’re an honest person relates to the fraud, but is not an essential element. You can be charged with fraud and be a generally honest person who’s just lied in this particular instance.
Thomas: What would be an essential element? I don’t understand.
Andrew: So it would be where there is an intent where there is a mental state. To say “with intent to defraud.”
Andrew: You would say well I’m gonna put on evidence that this person has never intended to defraud anybody.
Thomas: Well this is bizarre.
Andrew: It is totally bizarre.
Thomas: I stand by my reasoning.
Andrew: I think your reasoning was excellent, it’s why I went through – and by the way, I did all of this because, as patrons will see, the book answer is super not helpful in explaining this. [Laughs]
Andrew: I’m not gonna read it on the air because it’s nonsense – I mean, it’s not nonsense, it’s just not helpful.
Andrew: It is the case that in general you don’t get to put character evidence on. When you’re a criminal defendant and it’s relevant you get to elicit testimony in the form of an opinion-
Thomas: But somehow not specific examples?
Andrew: But not specific stuff.
Thomas: That makes no sense to me.
Andrew: So the way in which this plays out – again, I’m not a criminal lawyer, nor am I a criminal lawyer [Laughs] – finally got to that part!
Thomas: Sure you are.
Andrew: In Better Call Saul, it was great! Oh I laughed so hard at that episode!
Thomas: That’s from Breaking Bad…
Andrew: Uh, is it?
Thomas: Yeah. It’s Jesse Pinkman.
Andrew: Yes, yes you’re right. Of course it is, yeah. Sorry, I’m watching them in parallel, so it’s sort of fun.
Thomas: Yeah that’s interesting.
Andrew: It’s an interesting way to do it, it’s a weird way to do it.
Thomas: That’s alright. However you do it, I’m happy you’re watching, finally.
Andrew: Yeah, they’re great, they’re great. So notwithstanding that Jesse Pinkman diversion, here’s how this plays out. Prosecutor puts on evidence of the crime. The defendant then calls as a witness someone who will testify as to the general reputation of that person, and then on cross examination the prosecutor can then ask the witness about specific examples. Think about how that would take the form.
“Mr. Smith, you’ve testified that Andrew Torrez has a general reputation for honesty, but isn’t it true that you wrote him this letter in 2019 saying ‘you lied to me about the money, where is my money? I demand my money you lying sack of crap.’” I can impeach your general opinion with specific examples and then as the defendant what you can do is either, or both of, A) coaching the witness and/or B) redirecting the witness on those specific examples to try and get in an answer to whatever rebuttal cross-exam was introduced by the prosecution. Did that make sense?
So you might answer it as “oh yeah, I sent that email but immediately after I realized that I was looking at the wrong account, so I sent that in error.” That’s a way then of getting in the evidence of “oh, and what was that account?” “I had entrusted Andrew Torrez with a million dollars and he deposited it and for a second I thought he hadn’t but it was my fault because I was looking at the wrong line.” That’s the sort of head-chess you would use to try and get some of the specific examples in through the back door-
Thomas: Eh, this makes no sense.
Andrew: Until they ask in cross-ex, all I can do as the defense attorney is elicit general opinion testimony: “would you say he’s a good guy?” “Yes, I would say he’s a good guy.”
Thomas: That’s useless. Why would you- alright. This is-
Andrew: It’s totally useless, it’s a crazy rule. [Laughs]
Thomas: I majorly disagree with this law, this rule, whatever it is, so I stand by my answer, it’s the better answer.
Andrew: It’s the better answer, but it’s wrong in this case.
Thomas: Yeah, it’s wrong. You know, whatever. I get that you’ve gotta play it by the book, Andrew, I don’t blame you, but uh-
Andrew: Well thank you.
Thomas: This is stupid.
Thomas: Alright, well I got that wrong, let’s hop in your time machine and find the must be a lawyer who got this one right.
Andrew: Well, Thomas, I’ve gotta caveat this by saying I’ve been really, really busy working on the Opening Arguments brief, pretty much 18 hours a day all weekend. That being said, as far as I can tell nobody got this T3BE question right. I could be wrong, if you think you got it right this week go ahead and @ us next week, but the closest that I can find is Nathaniel Gajasa who writes “saying it’d be weird if witnesses were allowed to only testify about reputation and not specific acts (usually) is a hilarious accidentally accurate description of the law.” So far, he’s exactly right. But then he says “C is correct and opens defendant to contrary character evidence.”
Oh, man, Nathaniel! You were so close! But this time, close is good enough, so congratulations on being this week’s winner. Everyone give Nathaniel a follow, that is @NRGajasa on Twitter. Congratulations for being “close counts” in horseshoes, hand grenades, and apparently T3BE.
Thomas: Alright thanks for listening, thanks again to our guest Gabe Roth, really great interview and by the way check out fixthecourt.com and also we will see you folks on Friday!