Chapter 4 - §4. Impeaching specific witnesses

• Jurisdiction: United States

§4. Impeaching specific witnesses

§4.1. Impeaching character witness. A character witness is a person who testifies to the good character trait of some other person involved in the case (e.g., that another witness is truthful or that the defendant is peaceful). A character witness can be impeached with evidence that undermines her own credibility, such as evidence suggesting the character witness is biased or has been untruthful. Evid. C. §780. Additionally, if the character witness's testimony takes the form of either her understanding of the subject person's reputation in the community for a particular character trait or her own opinion of the subject person's character trait, then the character witness's reputation or opinion testimony can also be impeached by cross-examining her about the extent of her actual knowledge of, and familiarity with, the subject person. As is the rule with any offered impeachment evidence, all cross-examination of a reputation witness or of an opinion witness is subject to Evid. C. §352 analysis. See People v. Ramos (1997) 15 Cal.4th 1133, 1173; People v. Hempstead (1st Dist.1983) 148 Cal.App.3d 949, 954.

1. Reputation testimony. When a defense witness testifies about the defendant's good reputation for a particular character trait (e.g., his peaceful character), the prosecution may question the "reputation" character witness about whether she has heard reports about other conduct by the defendant inconsistent with his good reputation as related by the witness. People v. Wagner (1975) 13 Cal.3d 612, 619; People v. Tuggles (3d Dist.2009) 179 Cal.App.4th 339, 357; People v. Lopez (6th Dist.2005) 129 Cal.App.4th 1508, 1528. Such a "Have you heard?" question must be (1) asked in good faith, (2) within the scope of the character trait addressed by the witness, (3) properly phrased, and (4) accompanied by a limiting instruction if one is requested by the defense.

(1) Good-faith belief. When cross-examining a reputation character witness with a "Have you heard?" question, the prosecution must have a good-faith belief that the defendant actually engaged in the specified misconduct. Wagner, 13 Cal.3d at 619; People v. Marsh (1962) 58 Cal.2d 732, 745; Tuggles, 179 Cal.App.4th at 357-58. A good-faith belief requires factual support, and the question must be asked in anticipation of an affirmative response and not simply for the purpose of getting an innuendo before the jury. People v. Kramer (4th Dist.1968) 259 Cal.App.2d 452, 467-68...