Washington Lawyer - June 2020 - 52

L AST WORD

LEGAL SPECTATOR
By Jake Stein

CHARACTER
& REPUTATION

here was a time when what is
called character testimony was
a good defense in a criminal case.
That time is no more. Three or four
witnesses testifying to the reputation
of the defendant for truthfulness
and honesty together with a rousing
closing argument could bring in an
acquittal. Such closing arguments
picked up on the court's instruction
that character testimony, standing
alone, may create a reasonable doubt
as to the defendant's guilt.
Here is the way the argument goes:
The court will instruct you that evidence of
good character may, standing alone, create a
reasonable doubt, a reasonable doubt that
requires you to acquit the defendant. Ladies
and gentlemen of the jury, in some cases
there is no other defense against prosecution
witnesses who give perjured testimony. You
have heard the character witnesses testify
that my client is an honorable and good man.
His good character, established week by
week, month by month, year by year, repels
the allegation he suddenly repudiated a
lifetime of honesty and became a criminal.
Although the witnesses were called character
witnesses, they were in fact reputation witnesses
whose testimony was restricted to what the
witness knew of the general reputation of the
defendant. The defendant's true character -
what it really was - remained known only to the
defendant. Mark Twain made the point when he
said if a man's reputation was to meet on the
street the man's true character, they would not
recognize each other.

52 WASHINGTON LAWYER

JUNE 2020

Despite the common law restriction that a character witness was permitted only to say what
others thought of the defendant (not what the
witness himself thought of the defendant), a
resourceful witness would always find a way to
convey his own wonderful feelings about the
defendant.
Theodore Roosevelt was such a witness. Many
years ago, he appeared as a character witness for
a prominent Washington banker charged with a
felony related to bank records. Frank Hogan of
Hogan & Hartson represented the banker.
In speeches made years later, Frank Hogan fondly
recalled that when Teddy Roosevelt entered the
courtroom, everyone stood up. Then Roosevelt
took over and gave in colorful language his own
personal view that the defendant, although a
banker, was a saint, all in violation of the applicable rules of evidence.
Then Roosevelt looked at the judge and said:
"And by the way, Judge, I knew I had met you
somewhere. I appointed you because of your
civic righteousness, because of your interest in
the poor of this city, on my committee to clean
out the slums. I know, gentlemen of the jury, you
are glad to hear that about your Judge."
When Roosevelt left the courtroom, he passed in
front of the jury on his way out. He said, "I always
like to appear before a jury of my fellow citizens,
for you are rendering a public service. You are
here to do justice. That's why you are here - and
I know you are going to do it, I know you are
going to do it." The jury did the right thing and
Frank Hogan got his acquittal.
There is a school of thought that contends that
a character witness who has had an opportunity to observe the defendant when off-guard,
such as an employee who saw him in good
times and bad over a long period of time, has
more credibility than a so-called face card
witness.

This is the final "Legal Spectator" column
reprinted in Washington Lawyer to honor
the late Jake Stein, who gave us the "last
word" for nearly 25 years. Starting next
issue, a new voice will fill this page to
explore the lighter side of law.
There are a number of reasons why character
testimony does not have the impact it once
did. First, a defendant nowadays often does not
testify on his own behalf. The defendant is told
by counsel that if he takes the stand and he is
convicted, he may have substantially increased
his sentence because the judge has reason
to believe that the defendant lied under oath.
Therefore, stay off the stand. Character testimony
concerning the defendant's reputation for truthfulness and honesty is out of place when the
defendant does not testify.
Another reason is that trials have changed. The
prosecutor has evidentiary resources unavailable
years ago. He has witnesses who have been
granted immunity and who know more about
the character of the defendant than any character witness the defendant may call.
The third reason and perhaps the most important is that the general view of human nature
has changed. In the early novels the hero was
all good and the villain was all bad. Charles
Dickens's novels demonstrate the point. His
main characters are either wonderfully wonderful or as bad as bad can be.
Gradually, fictional characters changed. The hero
is not all virtue and the villain is not all vice. We
have changed also. We no longer believe in
unflawed goodness. Somerset Maugham, the
novelist and sophisticated observer of human
nature, had this to say: "Selfishness and kindliness, idealism and sensuality, vanity, shyness,
disinterestedness, courage, laziness, nervousness,
obstinacy, and diffidence, they can all exist in a
single person and form a plausible harmony."
Juries carry with them to the jury box this
general skepticism. They know of their personal
knowledge people who are generally good and
who then decide to steal from their employer.
They read of such cases every day in the papers
and see them on TV every evening.
If we needed any additional corroboration, we
are getting it from the historians who eagerly tell
us that the Founding Fathers - Washington,
Adams, Jefferson, and Hamilton - had their bad
days as well as their good days.
This column first appeared in the June 2002 issue of
Washington Lawyer.

Washington Lawyer - June 2020

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