New York law recognizes, as do all jurisdictions, that once a witness testifies his or her general character for truthfulness is placed in issue. See People v. Hinksman, 192 N.Y. 421, 432 (1908) (“[W]hen he assumes the character of a witness he exposes himself to the legitimate attacks which may be made upon any witness. Other witnesses may be called to impeach his credibility by showing that his general reputation for veracity is bad, or he may upon cross-examination be interrogated as to any specific act or thing which may affect his character and tend to show that he is not worthy of belief.”).
Proving the witness’ bad character for truthfulness is a basic impeaching strategy. Such impeachment can take one of three forms: cross-examination on non-conviction misconduct of the witness that bears on truthfulness; cross examination on convictions; and use of a character witness who testifies that the witness has a bad reputation for truthfulness. Each of these methods of impeachment are subject to strict limits recognized and imposed by substantial Court of Appeals precedent. See generally Prince, Richardson on Evidence (11th ed., Farrell) §§6-402-6-410; Martin, Capra & Rossi, New York Evidence Handbook (2d ed.) §6.10.1; Barker & Alexander, Evidence in New York State and Federal Courts (2d ed.) §§6:56, 6:58, 6:61.
This column will address the third mentioned method, the character witness for untruthfulness. While perhaps the least heralded and used of the three methods, the Court of Appeals has observed “it is an effective means of testing and assessing the credibility of witnesses and reaching a proper verdict.” People v. Pavao, 59 N.Y.2d 282, 290 (1983); see also People v. Hanley, 5 N.Y.3d 108, 114 (2005) (exclusion of defendant’s character witness’s testimony “deprived the jury of a tool to properly assess the credibility of the prosecution’s two key witnesses”). While its effectiveness may not be in doubt, anecdotal evidence derived from conversations with trial attorneys, both civil and criminal, and trial judges throughout the state strongly suggests that it is not used properly due to lack of understanding and confusion regarding the numerous limitations placed on its use. These limitations will be the focus of this column so that this traditional method of impeachment can be fully exploited by the trial attorney.
In Hanley, the Court of Appeals reaffirmed its view 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 the purposes of impeachment, has a bad reputation in the community for truth and veracity.” 5 N.Y.3d at 112. The basis for this right was that if a person is not a truthful person, the person’s testimony “will be much less likely to command belief that it would if he were reputed to be a truthful man.” People v. Hinksman, 192 N.Y. 421, 435 (1908). While Hanley, Pavao and Hinksman are criminal cases, there is no principled reason why the “right” they have recognized should not be extended to civil cases as well.
According to Hanley, this right to call a character witness cannot be invoked with respect to all opposing witness, but only “key” witnesses whose testimony was “substantive” in nature. Obviously, the Court was referring to witnesses whose testimony directly related to issues of liability or guilt. This seems to be a sensible limitation of the right for otherwise a trial would be awash with numerous character witnesses attacking opposing witnesses, the classic collateral issues the law seeks to avoid to prevent juries from becoming confused or trials prolonged. As to non-key witnesses, such as a character witness for truthfulness who is called to testify that a character witness for truthfulness called by the opposing party himself or herself has a bad reputation for truthfulness, the court in Hanley noted that the court can exercise discretion to allow that witness to testify. Hanley, 5 N.Y.3d at 114.
Form of Testimony
The Court of Appeals has instructed that proof of a witness’s untruthful character must be confined to testimony as to the witness’s bad reputation for truth and veracity. Barker, supra, §6:56 at p. 577. Thus, impeaching testimony about the witness’s general bad character is not permitted. Hinksman, 192 N.Y. at 435 (“We think that evidence of general bad character, which is nothing but evidence of general reputation, should not be considered competent to decide the issue whether a defendant who testifies in his own behalf is worthy of belief.”). Additionally, the impeaching witness may not testify to specific instances of conduct committed by the witness whose credibility is sought to be impeached, irrespective of whether those instances are the basis for the bad reputation, as they are deemed collateral. Pavao, 59 N.Y.2d at 289 (avoid danger of trial becoming “unnecessarily protracted and clouding the main issues”). New York law also precludes the character witness from giving his or her own personal opinion that the other witness is untruthful. Carlson v. Winterson, 147 N.Y. 652, 656 (1895). (Of note, almost all jurisdictions reject this rule and permit opinion testimony. See, e.g., FRE 608(a). Dissenting in People v. Barber, 74 NY2d 653, 655 (1989), Judge Vito Titone called for rejection of this no-opinion rule because it did not promote the truth finding objective of a trial.) However, the Court of Appeals has permitted the character witness, after testifying that the other witness has a bad reputation for truthfulness, to be asked whether, from his or her knowledge of the witness’s bad reputation for truthfulness, he or she would believe the witness under oath. Carlson, 147 N.Y. at 655.
While testimony as to a key witness’s reputation for untruthfulness is admissible as a matter of right, a proper foundation must first be laid. The determination as to whether particular evidence is admissible, including whether a proper foundation has been laid, rests within the trial court’s sound discretion, and like other evidentiary rulings its determination will be reversed only if the court abused its discretion in admitting or precluding the evidence. See People v. Aska, 91 N.Y.2d 979 (1998).
To establish a foundation to admit testimony that a key witness has a bad reputation for truthfulness, the proponent must show that the character witness is a member of the same community, has been a member of that community for a substantial period of time, knows others in the community who also know the key witness, has heard those other people discuss the key witness and knows from those discussions the key witness’s reputation for untruthfulness. See People v. Fernandez, 17 N.Y.3d 70, 76 (2011). As stated in People v. Bouton, 50 N.Y.2d 130, 139-140 (1980): “A reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him [or her] to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability. In short, the evidence must demonstrate a reputation rather than merely ‘individual and independent dealings.” Underlying these foundational elements is the requirement that the proponent of the testimony identifies a “community” that includes the key witness and the character witness as members. The Court of Appeals has observed that “community” does not refer to a residential neighborhood. Rather, the referenced community is a “community of individuals,” which can be, for example, a school, workplace, organization, military unit, and even a family with family friends, e.g., a basis around which a reputation might grow. See Martin, supra, §6.10.1 at p. 495. In this regard, a community of individuals can exist wherever “an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability” of that bad reputation for truthfulness. Bouton, 50 N.Y.2d at 139. Determination of the relevant “community of individuals” is a question of law for the court. Id. at 140.
Lastly, the relevant time frame for the reputation for untruthfulness does not have to be limited to at or about the time of the trial. See People v. Abbott, 19 Wend. 192, 200 (Supreme Court of Judicature 1838) (“Witnesses must speak on this subject in the past tense. Character cannot be brought into court and shown to them at the moment of trial. It can encompass a time period prior to trial, provided it is not too remote. Determining the relevant time frame is also a question of law for the court. See Dollner v. Lintz, 84 N.Y. 669 (1881).
Although the New York Court of Appeals has not directly addressed this issue, it would appear that New York law permits the character witness for untruthfulness to be asked on cross-examination as to whether the witness had heard about prior specific instances of conduct bearing on the truthfulness of the witness for whom the witness being examined has testified. In this regard, the Court of Appeals held in People v. Kuss, 32 N.Y.2d 436, 443 (1973) a character witness who testified that a prior witness, whose credibility had been impeached, had a good reputation for truthfulness could be cross-examined about whether the witness heard about reports or rumors derogatory to that reputation. This “have you heard” inquiry bears on the credibility of the character witness as it tests the sufficiency of the witness’s knowledge of the reputation if they had not heard such reports and rumors. Certainly, if that inquiry regarding derogatory acts is permissible with respect to a character witness for truthfulness, inquiry as to truthful acts should be permissible with respect to a character witness for untruthfulness. Whether such cross-examination should, in fact, be engaged in as a tactical matter should be explored because it would likely lead to a redirect examination as to whether the character witness had heard reports of untruthful acts on an open-the-door theory.
When a party’s witness’s character for truthfulness has been attacked, the Court of Appeals has held the party may seek to support or otherwise rehabilitate the witness’s credibility by calling a witness to testify that the impeached witness has a good reputation for truthfulness. See, e.g., Derrick v. Wallace, 217 N.Y. 520, 525 (1916) (“rebuttal evidence of good reputation”). The triggering of the admissibility of reputation evidence for truthfulness will occur when a character witness for truthfulness testifies. Id. at 523.
Notably, the Court of Appeals has held that while a party has a right to call a character witness for untruthfulness, there is no right to call a character witness for truthfulness. Rather, allowing such testimony is subject to the court’s discretion. As stated in Hanley: “The court’s discretion arises only when a party seeks to rebut that testimony. It is at that point that the judge may determine whether the admission of further testimony or the calling of additional witnesses is proper. This assures that the court will not be inundated with competing witnesses that will cause undue delay in bringing a trial to conclusion.” 5 N.Y.3d at 114. Nonetheless, the calling of a character witness for truthfulness by a party after the party’s key witness has been impeached by a character witness for untruthfulness should generally be permitted. Only when multiple character witnesses in support of an impeached witness should the discretion be exercised.
As can be seen, the admissibility of testimony by a character witness that a witness testifying for an adverse party has a bad reputation for truthfulness is strictly governed by numerous rules imposed by the Court of Appeals. Careful thought and planning to ensure compliance with these rules is mandatory lest the character witness for untruthfulness you call is precluded from testifying.
Michael J. Hutter is a Professor of Law at Albany Law School and is special counsel to Powers & Santola. He currently serves as the Reporter to the Judicial Advisory Committee on Evidence, which is charged with compiling a guide to New York’s existing law of evidence.