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Washington Lawyer

Legal Spectator: Character and Reputation

From Washington Lawyer, June 2002

By Jacob A. Stein

spectatorThere was a time when what is called character testimony was a good defense in a criminal case. That time is no more. Three or four witnesses testifying to the reputation of the defendant for truthfulness and honesty together with a rousing closing argument could bring in an acquittal. Such closing arguments picked up on the court’s instruction that character testimony standing alone may create a reasonable doubt as to the defendant’s guilt.

Here is the way the argument goes:

The court will instruct you that evidence of good character may, standing alone, create a reasonable doubt, a reasonable doubt that requires you to acquit the defendant. Ladies and gentlemen of the jury, in some cases there is no other defense against prosecution witnesses who give perjured testimony. You have heard the character witnesses testify that my client is an honorable and good man. His good character, established week by week, month by month, year by year, repels the allegation he suddenly repudiated a lifetime of honesty and became a criminal.

     Although the witnesses were called character witnesses, they were in fact reputation witnesses whose testimony was restricted to what the witness knew of the general reputation of the defendant. The defendant’s true character-what it really was-remained known only to the defendant. Mark Twain made the point when he said if a man’s reputation was to meet on the street the man’s true character, they would not recognize each other.

Despite the common law restriction that a character witness was permitted only to say what others thought of the defendant (not what the witness himself thought of the defendant), a resourceful witness would always find a way to convey his own wonderful feelings about the defendant.

Theodore Roosevelt was such a witness. Many years ago Roosevelt appeared as a character witness for a prominent Washington banker charged with a felony related to bank records. Frank Hogan of Hogan & Hartson represented the banker. The trial took place in what is now called the old United States District Court Building at 5th and Indiana Avenue.

In speeches made years later Frank Hogan fondly recalled that when Teddy Roosevelt entered the courtroom everyone stood up. Then Roosevelt took over and gave in colorful language his own personal view that the defendant, although a banker, was a saint, all in violation of the applicable rules of evidence.

Then Roosevelt looked at the judge and said: "And by the way, Judge, I knew I had met you somewhere. I appointed you because of your civic righteousness, because of your interest in the poor of this city, on my committee to clean out the slums. That’s what I did, and you were one of the best men on the committee I ever had. I know, gentlemen of the jury, you are glad to hear that about your Judge. I knew I recognized him."

When Roosevelt left the courtroom he passed in front of the jury on his way out. He said, "Goodbye, gentlemen of the jury. I always like to appear before a jury of my fellow citizens, for you are rendering a public service. You are rendering a really great public service, just as much as the Judge there. You are here to do justice. That’s why you are here-and I know you are going to do it, I know you are going to do it." The jury did the right thing and Frank Hogan got his acquittal.

There is a school of thought that contends that a character witness who has had an opportunity to observe the defendant when off-guard, such as an employee of the defendant who saw him in good times and bad over a long period of time, has more credibility than a so-called face card witness.

There are a number of reasons why character testimony does not have the impact it once did. First, a defendant nowadays often does not testify in his own behalf. The defendant is told by counsel that if he takes the stand and he is convicted, he may have substantially increased his sentence because the judge has reason to believe that the defendant lied under oath. Therefore, stay off the stand. Character testimony concerning the defendant’s reputation for truthfulness and honesty is out of place when the defendant does not testify.

Another reason is that trials have changed. The prosecutor has evidentiary resources unavailable years ago. He has witnesses who have been granted immunity and who know more about the character of the defendant than any character witness the defendant may call.

The third reason and perhaps the most important is that the general view of human nature has changed. In the early novels the hero was all good and the villain was all bad. Charles Dickens’s novels demonstrate the point. His main characters are either wonderfully wonderful or as bad as bad can be.

Gradually fictional characters changed. The hero is not all virtue and the villain is not all vice. We have changed also. We no longer believe in unflawed goodness. Somerset Maugham, the novelist, and a sophisticated observer of human nature, had this to say: "Selfishness and kindliness, idealism and sensuality, vanity, shyness, disinterestedness, courage, laziness, nervousness, obstinacy, and diffidence, they can all exist in a single person and form a plausible harmony."

Juries carry with them to the jury box this general skepticism. They know of their personal knowledge people who are generally good and who then decide to steal from their employer. They read of such cases every day in the papers and see them on TV every evening. Therefore jurors are more skeptical of character testimony than they were when life was simpler.

If we needed any additional corroboration, we are getting it from the historians who eagerly tell us that the Founding Fathers-Washington, Adams, Jefferson, and Hamilton-had their bad days as well as their good days.

Jacob A. Stein may be reached by e-mail at [email protected].