Wednesday, June 29, 2005

Court of Appeals: failure to allow defendant to present "bad reputation" evidence about key witness reversible error

The Court of Appeals handed down three criminal decisions of note today. I'll comment on People v Kelly (a murder-by-bayonet case) and People v Paulman (finding statement given after Miranda warning attenuated from improper pre-Miranda statement) over the next couple of days. For tonight, I'll deal with People v Hanley. The Court in Hanley reaffirmed that,

"[A] party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity."

The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury.

(Hanley at 4 [citations omitted].)

This rule allowing general "reputation" evidence for purposes of impeaching credibility stands against the equally "well setlted" rule "that a party cannot call a witness to contradict an opposing witness' answers on cross-examination solely for the purpose of impeaching that person's credibility." (Hanley at 3.) These two rules bothered me during my evidence class at law school, and the passage of time has done nothing to make the rules more intuitive. It seems testimony about a person's general bad reputation for credibility, stated in broad, nonspecific terms, is the least helpful measure of a person's credibility. And yet that is the type of evidence a trial court not only may allow in its discretion, but must allow or else commit reversible error. ( See Hanley at 6 ["Supreme Court incorrectly analyzed the admission of the proposed testimony as purely discretionary. As we made clear in Pavao, a party may introduce reputation testimony as a matter of right if a proper foundation has been established."].) And yet specific factual testimony that contradicts another person's testimony is not allowed to show that the person is lying and thus lacks credibility. This is one of those wrinkles of evidence law that was made to be accepted and not understood.