Attacking the Character and Credibility of Witnesses
Generally, the character of a witness is not admissible at trial whether it be the accused himself or a witness called by either the prosecution or the defense. There are exceptions, however, to this rule and it is important that your defense attorney investigate the backgrounds of any witness called to trial to avoid a surprise which could be detrimental to your case.
While I have written previous blogs and articles on the character of a defendant, this article focuses on the character and credibility of other witnesses. These witnesses would include the alleged victim, eye witnesses, and any other witness called by the state which would enable it to prove its burden of guilt beyond a reasonable doubt. In a criminal case the character of an alleged victim is admissible when and if the accused introduces it during his testimony or the prosecution is put in a position to rebut an allegation made by the defense. If, for example, the victim testifies that he is a peaceful person the defense could, on cross examination, introduce evidence to dispute this testimony. If the defense were to introduce evidence that an alleged victim was the first aggressor in an assault case, for example, the prosecution could introduce evidence of the alleged victim’s character for peacefulness, or his/her non aggressive nature.
While the general rule is that character evidence is not admissible, the defense or prosecution may introduce it for another purpose. This exception usually applies when a witness has engaged in previous crimes or wrongful acts. The attorney introducing this evidence would submit it under the premise that it is not meant to prove a person’s character but rather a witness’ prior knowledge, intent to commit an act, or motive to commit an act. In most situations, however, it is the prosecution attempting to introduce these previous acts against the defendant where there is no direct evidence (eye witnesses) and only circumstantial evidence that a crime occurred. While it may appear that the rules regarding character evidence are more favorable to the prosecution, it is important to understand the difference between character evidence and the ability to impeach the credibility of a witness.
The rules of impeachment allow an attorney to attack the credibility of any witness even a witness called in support of that attorney’s position. An attorney may use any evidence to impeach the credibility of a witness but that rule is not automatic. In most cases courts will only allow an attorney to attack a witness’s credibility using evidence of prior convictions involving dishonesty or untruthfulness. While a court may allow an attorney to question a witness about other incidents in their past, a judge will not allow this line of questioning if he/she determines that it is not probative (tending to prove) in establishing whether a witness is telling the truth or not. In Pennsylvania, for example, a witness’s arrest record, even a record involving a crime of dishonesty, is generally not admissible if that arrest did not result in conviction. While the defense counsel may still attempt to introduce such evidence, a court more than likely will not admit it based on the highly prejudicial information and the fact that an arrest, in and of itself, is not evidence of guilt.
The rules regarding witness impeachment and character evidence are more restrictive in Pennsylvania then they are in the federal courts. Pennsylvania’s state courts must follow the Pennsylvania Rules of Evidence while the federal courts, including those within Pennsylvania, must follow the Federal Rules of Evidence. It is important for your attorney to understand the difference between these two sets of rules. In the federal system, for example, an attorney is permitted to cross examine a witness regarding certain incidents in their past as long as the incident is regarding their character for truthfulness or honesty. In Pennsylvania, however, an attorney is not normally permitted to question a witness about incidents unless those incidents resulted in some type of criminal conviction. The Federal system also allows a witness to give an opinion as to another’s good character while Pennsylvania only permits a witness to testify as to another’s reputation in the community for such attributes as honesty, peacefulness, or law-abiding.
The ability of an attorney to effectively cross exam a witness with regards to their character or their credibility requires that the attorney have a firm understanding of that particular witness’s background. In most cases an attorney will need to work with an investigator who can discover information beneficial to a case. While investigative fees are normally separate from legal fees, the benefit obtained from an investigation is more than worth the financial investment.
In closing, the character and credibility of witnesses at trial is critical to a proper defense. It is as important as the facts surrounding your arrest. An attorney who fails to properly explore these issues is not providing his client with the best opportunity to obtain a favorable result in a case. For more information about this important topic feel free to contact me directly at the office. I wish you all the success with your case!