Rogers v. United States

566 A.2d 69, 1989 D.C. App. LEXIS 238, 1989 WL 138759
CourtDistrict of Columbia Court of Appeals
DecidedNovember 17, 1989
Docket85-1421
StatusPublished
Cited by21 cases

This text of 566 A.2d 69 (Rogers v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. United States, 566 A.2d 69, 1989 D.C. App. LEXIS 238, 1989 WL 138759 (D.C. 1989).

Opinions

[71]*71ON REHEARING EN BANC

BELSON, Associate Judge:

Michael Rogers was convicted of distribution of phencyclidine (PCP) and cannabis (marijuana). D.C.Code § 33-541(a)(1) (1988 Repl.).1 He appealed his convictions, challenging the exclusion of “negative evidence” of a defendant’s good reputation and the cross-examination of a defense character witness as to defendant’s prior arrests that occurred while he was a juvenile. The majority of a division of this court rejected both challenges and voted to affirm. Rogers v. United States, 534 A.2d 928 (D.C.1987), vacated and reh’g en banc granted, id. at 936 (1988). Having granted rehearing en banc, we consider only the second of these issues, whether the government may use a defendant’s juvenile arrests to cross-examine a witness to defendant’s good character. We hold that the trial court, in the exercise of its sound discretion, may permit such cross-examination, and we also take this occasion to expand the scope of permissible character testimony beyond the currently permitted reputation testimony to include the witness’ opinion about the relevant character trait.

I.

After testifying in his own behalf at the trial on the distribution charges, appellant presented two witnesses to attest to his good character for truth and veracity, the Reverend David Durham and Ms. Barbara Gibson. The government had requested permission to use three juvenile arrests on charges involving moral turpitude to impeach the reputation witnesses. After what appellant terms “extensive discussion between court and counsel” out of the jury’s hearing, the trial court at first declined on the basis of an assessment of prejudicial effect versus probative value, but later reassessed the matter and ruled that the government could question the character witnesses about appellant’s juvenile arrests. Reverend Durham testified that he had never heard anyone discuss appellant’s reputation for truth and veracity. The trial court did not permit him to testify concerning appellant’s character.2 Ms. Gibson, who had known appellant for thirteen years through the Mt. Sinai Baptist Church Youth Council, testified that appellant was well mannered in church and that he had a reputation for telling the truth. On cross-examination, she said that she had never heard that appellant was arrested for petty larceny in 1977, for burglary and grand larceny in 1978, or for robbery in 1981.3

We hold that this cross-examination of Ms. Gibson was permissible. As this case has caused us to reassess issues relating to the testimony of character witnesses, it presents an appropriate occasion for bringing the law in the District of Columbia into conformity with that of the large and growing number of jurisdictions that have ruled that the range of evidence admissible to prove a party’s good character shall include the opinion of a lay witness based on the witness’ knowledge of the party.4 It will remain permissible to adduce a witness’ knowledge of the party’s reputation in a community of which defendant is a member. ■ Whenever character evidence is received pursuant to our holdings here, the trial court will remain responsible to exercise its broad discretion to screen proposed cross-examination for rele-[72]*72vanee, prejudice that outweighs probative value, potential to cause excessive delay, or possible jury confusion. See Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948) (trial court has “heavy responsibility” to exercise discretion); see also Devore v. United States, 530 A.2d 1173, 1174, 1176 (D.C.1987).

II.

The evolution of proof of character at trial has been marked by vacillation as to what methods of proof are acceptable. Conceptually, character can be proved by reference to specific acts, reputation, or opinion. While testimony as to reputation has long been allowed to prove character, it is only relatively recently that courts in this country generally have made reputation the exclusive means of proof. At common law, “the original and .unquestioned practice called for and allowed the witness’ own belief, founded merely on personal intimacy, as to the trait of character in question, and did not insist on or necessarily ask for the community’s reputation.” 7 J. Wigmore, Evidence § 1981, at 206 (Chad-bourn ed.1978) (emphasis in original). Wig-more decries reputation evidence as “the secondhand, irresponsible product of multiplied guesses and gossip.” Id. § 1986, at 244. Several commentators have acknowledged that reputation evidence is little more than “opinion in disguise,” see, e.g., 2 J. Weinstein & M. BergeR, Weinstein’s Evidence § 405[03] (1986), rendering meaningless the distinction between reputation and opinion testimony and -mooting the debate over which is preferable. Indeed, the Advisory Committee on the Federal Rules of Evidence felt that “the persistence of reputation evidence is due to its largely being opinion in disguise.” Fed.R.Evid. 405 advisory committee’s note. See also Government of Virgin Islands v. Petersen, 553 F.2d 324, 328 (3d Cir.1977).

Commentators often refer to reputation testimony as the “traditional” method of proving character. In fact, a review of historical developments confirms that in ruling that opinion testimony shall also be admissible, we have now come full circle. As the Advisory Committee on the Federal Rules noted, “[i]n recognizing opinion as a means of proving character, the rule departs from usual contemporary practice in favor of that of an earlier day.” 22 C. Wright & K. Graham, Federal Practice and Procedure § 5262, at 570 n. 42 (1978); McCormick on Evidence § 186, at 551 n. 10 (Cleary ed.1984). The early English common law favored the use of opinion to prove character. Courts allowed the use of reputation testimony as well, but “to speak from reputation alone was regarded in the 1700’s as improper.” Wigmore, supra, § 1981, at 208-09. Nineteenth century evi-dentiary codes did not explicitly prefer reputation testimony as the means of proving character, but “there is reason to think that the drafters thought of ‘character’ as synonymous with reputation.” 22 C. Wright & K. Graham, supra, § 5261, at 561 (1978). A later change to exclusive reliance on reputation, see Wigmore, supra, § 1610, found such favor in this country that many have been led to consider proof of character by reputation the traditional approach. See, e.g., C. Wagner, Federal Trial Evidence 126 (1984). To the contrary, the eclipse of opinion testimony by reputation was the result of a “historical accident,” according to Wigmore, growing out of the misinterpretation by a few treatise authors of a phrase used in an early nineteenth century opinion, Jones’ Trial, 31 How.St.Tr. 251, 310 (1809), cited in Wig-more, supra, § 1981, at 210. See also

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Bluebook (online)
566 A.2d 69, 1989 D.C. App. LEXIS 238, 1989 WL 138759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-united-states-dc-1989.