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January 22, 2024 Trial Tactics

An Unusual Use of Character Evidence

Stephen A. Saltzburg

The Basic Rule

Although character evidence is generally inadmissible to prove a party’s propensity—i.e., how that party behaved on a specific occasion—rules like Fed. R. Evid. 404(a)(2)A) provide an exception:

(a) Character Evidence. ***
(2)
Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: 
(A) 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. . .

If a defendant in a criminal case decides to offer evidence of a pertinent character trait, rules like Fed. R. Evid. 405(a) prescribe the types of evidence that may be used to prove the trait:

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

The first sentence limits the evidence offered by the defendant to reputation and opinion. The second sentence provides that a trial judge may permit the prosecution to inquire into relevant specific instances of conduct during cross-examination to create doubts about positive reputation or opinion testimony. Such cross-examination was approved by the U.S. Supreme Court in Michelson v. United States, 335 U.S. 469 (1948), at a time when the defendant was limited to relying on reputation evidence. Rules like Fed. R. Evid. 405 make clear that the same type of cross-examination is available to a prosecutor whether a defendant relies on reputation, opinion, or both.

Typically, a defendant wishing to present character evidence calls favorable witnesses to testify during the defense case-in-chief. But there are atypical cases.

One Atypical Case

One atypical case is United States v. Johnson, 79 F.4th 684 (6th Cir. 2023). The court of appeals described Kenneth Johnson as “an institution in Cleveland politics,” serving as “[a] councilman for the Buckeye-Shaker Square neighborhood for 41 years.” This was one of the longest tenures as a municipal leader in the country. Johnson’s career came to an end when he, together with his executive assistant and co-conspirator, Garnell Jamison, was convicted on 15 charges. Johnson was charged with and convicted of using his position to fraudulently claim federal reimbursements for payments he never made, securing employment for his children in federally funded programs in which they were not legally eligible to work and depositing their earnings into his own account, fraudulently claiming a series of tax deductions, and encouraging and assisting his son Elijah in submitting falsified records as part of Elijah’s grand-jury testimony. Jamison was convicted of assisting Johnson in the criminal activity.

The Evidence Issue

One of the tax charges against Johnson focused on his claimed charitable deductions for items and services purportedly donated to a recreation center located within his ward. During its case-in-chief, the government called the Commissioner of Recreation, Samuel Gissentaner, to testify about the city’s policies for accepting recreation donations. More specifically, Gisssentaner testified that all recreation-center donations under $10,000 required his approval and any donation over $10,000 required the City Council to pass legislation before the donation could be accepted. Gissentaner could not recall any instance in which Johnson had made a donation to the recreation center, and no records of such donations existed. His testimony was corroborated by other city employees.

It seems apparent that Gissentaner’s and the other city employees’ testimony was powerful evidence that Johnson falsely claimed charitable donations. On cross-examination, Johnson’s attorney asked whether Gissentaner found Johnson “to be honest and truthful.” Although it is almost certain that this cross-examination was outside the scope of the direct examination, the government did not object. Gissentaner said that he did find Johnson to be honest and truthful. Having elicited this opinion testimony, Johnson’s attorney then asked a convoluted question: whether Gissentaner had “a personal opinion as to Johnson’s reputation for truthfulness and honesty.” The question was convoluted because a typical reputation witness testifies to being familiar with the defendant’s reputation in the community and not to his opinion about reputation. But the prosecution did not object and Gissentaner testified that his personal opinion was that Johnson had a reputation for being very truthful.

On redirect examination, the prosecution asked Gissentaner whether his “opinion [would] be impacted if [Gissentaner] knew that Mr. Johnson signed checks issued to his sons that they had not endorsed to [Johnson].” Johnson’s counsel objected unsuccessfully and Gissentaner stated that he “would really really have to scrutinize that.” The government then asked if Gissentaner’s opinion would change if he “knew that [] Johnson wrote council member expense reimbursement reports.” Defense counsel again objected unsuccessfully, and Gissentaner stated that he “would have to scrutinize that,” but that he “would have to delve into it a little deeper before [he] changed [his] opinion of how [he] fe[lt] about [Johnson].”

On appeal, Johnson argued that the government’s questions violated Fed. R. Evid. 404, 405, and 608. The court found that the plain language of the rules required rejection of the argument. The court of appeals noted that “[f]or purposes of the testimony about Johnson’s character, the district court appropriately treated Gissentaner as effectively Johnson’s witness.” This makes perfect sense since there was no doubt that Johnson had injected character evidence into the case and therefore Rule 405(a) permitted “an inquiry into relevant specific instances of the person’s conduct” on cross-examination. The government’s redirect examination was actually a cross-examination of the character testimony.

The court of appeals cited two cases from other circuits reaching the same result: Virgin Islands v. Roldan, 612 F.2d 775 (3d Cir. 1979), and United States v. Powell, 124 F.3d 655 (5th Cir. 1997). The court not only relied on Rule 405(a); it also relied on Fed. R. Evid. 607, which provides that “[a]ny party including the party that called the witness” may impeach. The court reasoned that “even if Gissentaner was the government’s witness on this character evidence, the government could impeach him.” Of course, it was Johnson seeking to rely on character evidence, and once he offered it, the government had every right to cross-examine. There was no need to rely on Rule 607.

A Strategic Question

Given that it is likely that a municipal official who was able to be elected and re-elected for 41 years had many people who voted for him and likely believed that he was honest, it seems like questionable strategy to use a government witness whose direct testimony demonstrated tax fraud to serve as a character witness on cross-examination. Even though Gissentaner offered favorable opinion and reputation testimony concerning Johnson’s truthfulness and honesty, his hesitation when asked whether his opinion would change if he knew unfavorable things about Johnson greatly weakened his testimony. If the defense strategy was to inject favorable testimony in the middle of the government’s case-in-chief, it is not clear that strategy was worth having the government’s witness asked about acts casting doubt on honesty and truthfulness immediately after his direct testimony supporting the government’s tax fraud charge.

The Missed Objection

Defense counsel might have made a different objection and might have been able to prevent the questions put to Gissentaner. Both questions appeared to relate to other charges brought against Johnson in the same case. Thus, they were guilt-assuming hypotheticals that many courts and judges would not permit given the presumption of innocence to which every defendant is entitled. The court of appeals was aware of the issue because buried in a footnote was this citation:

United States v. Oshatz, 912 F.2d 534, 547 (2d Cir. 1990) (Mukasey, J. concurring) (“It bears mention also that in Lopez v. Smith, 515 F. Supp. 753, 756 (S.D.N.Y.[ ]1981), Judge Weinfeld wrote that when a character witness testified to opinion, ‘it was not error to allow the attempt to impeach his opinion’ with a guilt-assuming hypothetical question.”).

It is unclear whether the court was endorsing the concurring opinion and that of Judge Weinfeld. That would be odd given that the holding of the court in Oshatz was that guilt-assuming questions are barred in a criminal case and that Oshatz relied on a Sixth Circuit case, United States v. McGuire, 744 F.2d 1197, 1204 (6th Cir.1984) McGuire would seem to have prohibited the questions put to Gissentaner provided that a proper objection had been made.

Lessons

  1. Putting a defense character witness on the stand is always problematic since the defense is limited to reputation and opinion evidence, whereas the prosecution can ask about specific acts on cross-examination.
  2. Trying to elicit character evidence on cross-examination of a government witness whose direct testimony was strong evidence of tax fraud was even more problematic given that the government has the right to cross-examine the character witness about specific acts not mentioned on direct examination.
  3. Defense counsel should always be alert when guilt-assuming questions are directed to a character witness and should raise a timely and specific objection to such questions.
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Stephen A. Saltzburg

The George Washington University Law School

Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor at The George Washington University Law School and is a former chair of the Criminal Justice Section.