Character Testimony: What if Mother Teresa Pulled a 'Bank Job'?

Joel Cohen

Some lawyers, now mostly unsuccessfully (but more successfully in the past), have argued the following to constitute an appropriate jury instruction: "Ladies & Gentlemen, You have heard character testimony introduced by the defendant. I charge you that having heard all of the evidence, if you have a reasonable doubt on the basis of the character testimony standing alone, meaning in and of itself, you must acquit the defendant."

To be sure, the jury will be correctly told that a "reasonable doubt" is a "doubt based upon a (common sense) reason." That reason, the defendant's attorney will also argue, might be the improbability that the defendant could have committed the crime, given his incredible reputation for honesty and integrity.

But is that the law as it exists today?

Mother Teresa of Calcutta was the iconic figure of her day, enjoying -- and by most accounts, deserving -- a reputation of unimpeachable character. Even aside from her reputation for honesty and integrity, her good works for the poor were extraordinary, as most everyone acknowledges her to have been one of the most "hard-core" philanthropic persons imaginable. Although not yet canonized, Mother Teresa was the closest thing to a living saint (although -- unsurprisingly, given his reputation as a contrarian -- the late Christopher Hitchens complained in his clergy-phobic rant "The Missionary Position" that Mother Teresa was no friend of the poor, only a "friend of poverty").

But crazy things can happen. Suppose, during her lifetime, that Mother Teresa were charged with bank robbery. And assume the eyewitnesses to it were none other than the pope, Nelson Mandela and former Watergate prosecutor Archibald Cox -- witnesses of the utmost integrity. They become unshakeable prosecution witnesses at trial, and all that can save Mother Teresa is her almost universally sterling reputation for integrity and good deeds. Thousands, maybe even millions, of people who don't know her personally (which they are not required to, under the applicable rule of evidence) would willingly testify on her behalf, although the judge would be well within trial management discretion to limit the number of character witnesses who would testify, lest they prove unfairly cumulative. Still, witness after witness would make the alleged commission of robbery by Mother Teresa seem virtually impossible to any jury, and as a result, the jury might very well acquit her.

But let's suppose her trial were, for example, before Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. In presiding recently over the noteworthy insider trading trial of Rajat Gupta, whose trial attorneys wanted to trumpet Gupta's heralded reputation for philanthropy, Rakoff essentially proclaimed what he would do with such testimony even if Mother Teresa (Rakoff was clearly seeking the reputed epitome of virtue) were instead before him as a defendant: "If Mother Teresa were charged with bank robbery, the jury would still have to determine whether or not she committed a bank robbery." In light of Hitchens' verbal assault on Mother Teresa, Rakoff might instead have chosen as his example Abraham Lincoln or some other such seemingly peerless figure -- but let's stick here with Mother Teresa.

Given the Gupta prosecutor's stated intention not to refer to Gupta's alleged "greed" at trial -- an indication by the prosecutor that charity was not truly an issue in the case -- the philanthropic side of defendant Gupta's life was simply not laid bare before the jury. Would-be Mother Teresa-like "bank robbers": Watch out! Under Rakoff's tersely stated conception, character testimony (which will obviously be raised in Gupta's appeal, although the judge's analysis seems to comport with Second Circuit case law) is not technically a wild card that, "standing alone," can serve as a knockout counterpunch to strong evidence of guilt.

Put differently, a jury can't find reasonable doubt even if it hears overwhelming evidence that the defendant has the singularly best reputation in the world -- a reputation which would make it virtually impossible for a juror to believe that he committed the crime. A "standing alone" jury charge -- under which a jury could basically grant absolution for an individual's aberrant act(s) of criminal wrongdoing, given a lifetime of reputed "clean living," as articulated in poetic witness encomia -- is largely out of favor in the courts. And well it should be. After all, so many defendants (and white-collar defendants in particular) can easily dress up a trial defense in the pure white linen of charitable and communal acts over the trajectory of their lives so as to accord them what might constitute a "get-out-of-conviction-free" card.

As discussed further below, character or reputation testimony is not technically a "wild card." Still, lawyers who proffer it recognize its definite potential to cause juries to nullify damning evidence. Where jurors become sufficiently wowed by a defendant's reputed trait for integrity, they may be moved to discard, or at least subordinate, the substantive evidence of the crime itself. As a result, a jury's decision to simply disregard even the most powerful evidence of guilt, perhaps due to the defendant's likeability or favorable reputation, allows character testimony to serve as a "back door" basis on which to nullify evidence. The risk is that the fears to which Judge Rakoff alluded in discussing potential trial testimony in Gupta could become reality.

What exactly may character/reputation witnesses testify to? And how are jurors charged to deal with such testimony? Specifically, three modes of such not-really-substantive-evidence are allowed by Rule 405 of the Federal Rules of Evidence. No. 1: A witness can testify to the defendant's reputation ("I have spoken to any number of people with knowledge of the defendant who say she is known for being law-abiding and for her fine reputation for honesty [or some other character trait if that trait is admissible in the context of the particular criminal charge].") No. 2: A witness can testify that he knows the defendant and has a particular opinion of his character ("I have known the defendant for many years and my personal opinion is that he is an honest, or law-abiding, person.") No. 3: Where a person's character or character trait is actually an element of the charge, such as the character trait of "honesty" for use in defending against a perjury charge (or, indeed, an element of the gravamen of a civil claim), the defendant's character may be proven by relevant specific instances of the person's conduct ("While the defendant is charged with falsely certifying corporate documents, I was familiar with the contents of many corporate documents he executed in which he always gave truthful certifications, even though truthfulness in those instances was not always good for him individually.")

Sure, prosecutors are accorded powerful cross-examination tools to undermine such testimony. A prosecutor's arsenal includes questions such as "Where exactly were you on August 5, the date on which Mother Teresa was charged with having robbed the Bank of Calcutta?" or "You're testifying to what you believe to be Mother Teresa's reputation, even though you have never been on the same continent with her at any point in your life?" or "Although it is your opinion that she is totally honest, you have no firsthand knowledge about anything about which Mother Teresa has ever spoken?" Or, finally, "Did you know that on August 5, Mother Teresa, wearing a burqa-like veil, walked into the Calcutta Bank with a shotgun and shot the teller in the shoulder? And had you known, would that have changed your testimony today?"

Despite a prosecutor's best cross-examination, a persuasive witness's favorable testimony regarding a defendant's character may carry significant weight with a jury, especially where the witness is a respected member of the community or has a particularly impressive CV. As a backstop to this (and one that Judge Rakoff has imposed under Rule 403 of the Federal Rules), a judge may exclude relevant evidence when its probative value is substantially outweighed by the danger of it being unfairly prejudicial, confusing of the issues, wasting time, or needlessly presenting cumulative evidence.

This is where the rubber meets the road. If Mother Teresa were accused of holding up a bank, no matter how substantial an injustice such a prosecution might appear to be (perhaps even to Hitchens), her lawyer would not be permitted to flood the courtroom with witnesses who might cause a jury to "nullify" based on good character. And that's probably the way it should be. Yes, character testimony has been permissible for centuries, but such testimony -- even in amalgam -- has limitations. Character testimony cannot be considered evidence of the witness's opinion that the defendant is not guilty. It may only be used in combination with all of the other evidence in determining the guilt of the accused. Only where the totality of the evidence gives rise to a "reasonable doubt" regarding guilt should testimony indicating the improbability that the defendant of good character committed the offense be permitted to contribute to the jury's decision to acquit.

One supposes that, in addition to the traditional jury charge that Rakoff would have given in Gupta (somewhat like what is described just above), a judge who presides over the trial of a Mr. Gupta or a Mother Teresa-like figure (or really any case) would be concerned about one thing in particular: He would want to avoid the possibility that the relevant incriminating facts would be buried under a mountain of psalms in praise of the defendant, authored by witnesses who weren't present at the Bank of Calcutta the day Mother Teresa approached Teller No. 1 with a gun pointed to his head.

True, Mother Teresa would have been entitled to have a jury consider her defense. And the defense, given her reputation, might have been the "improbability" that this particular defendant would rob a bank in the first place. Still, even Mother Teresa would not be entitled to have her jury compromised by hearing too much of a good thing, just as the prosecution would not be entitled to have all 23 customers on Teller No. 1's line pointing their fingers at the hapless nun who, according to a parade of extremely credible witnesses, had seemingly been caught red-handed.

And, by the way, if a latter-day Abraham Lincoln were the bank robber in question, the same rules of admissibility and trial management would circumscribe his defense. Given the character testimony that Mother Teresa or Lincoln could produce in their defense, even without the narrators having known the defendants or been in their presence, it would certainly be hard to convict without leveling the playing field by placing meaningful limits on the admission of such testimony. That is precisely the issue that Judge Rakoff sought to address in deciding how much and what kind of character testimony the Gupta trial jury would be permitted to hear.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He also teaches Professional Responsibility at Fordham Law School. The author is a regular columnist for Law.com. The views expressed are his personal opinions.