I Don’t Give a Damn Bout My Bad Reputation: Julia Simon-Kerr’s “Unchaste and Incredible” and the Development of the Character Evidence Rules

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In the American court system, when judges allow attorneys to attack the character of witnesses, they generally allow them to do so only through reputation and opinion testimony. Federal Rule of Evidence 405(a) provides that:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

And Federal Rule of Evidence 608(a)  provides in relevant part that:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation.

Like Rule 405(a), Rule608(b)  allows for inquiry into relevant specific acts of (mis)conduct on cross-examination, but neither Rule allows for the admission of extrinsic evidence of those acts in the event of an unsatisfactory answer.  

In other words, in a murder trial, after the defendant testified and had her character for honesty attacked by the prosecution, defense counsel could call a witness to testify that the defendant has a reputation for being honest.  The prosecutor could thereafter ask that witness on cross-examination whether she had heard that the defendant cheated on her taxes last year.  According to the Federal Rules  and case law, the above reputation testimony is evidence of the defendant’s character while the prosecutor’s “specific act” question is not evidence of the defendant’s character but merely probes the testimonial qualifications of the witness.  

As the Advisory Committee Note to Rule 405  makes clear:  “The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting;” it is not independent evidence of character.  This is why the prosecutor could not follow up with extrinsic evidence of the defendant’s tax cheating (absent a conviction) should the witness testify that she was unaware of any such act by the defendant.

When I teach Evidence, students often wonder why American courts generally allow attorneys to prove character through opinion and reputation testimony (what we might otherwise call gossip and rumors) but not through “specific act” evidence.  “And you may ask yourself-well…how did we get here?”

Well, there are several theories out there.  Some say that courts wanted to avoid the “trial within a trial” that the admission of “specific act” evidence would create.  Meanwhile, John Henry Wigmore believed that American character/impeachment evidence jurisprudence  is a “perversion of the earlier English rule that focused on the personal belief of the  impeaching witness grounded in his or her ‘personal knowledge’ of the person whose credibility was at issue.”

Well, in her recent Note, Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment, Julia Ann Simon-Kerr “offers another explanation.”    Simon-Kerr notes that historically, reputation evidence was inadmissible to impeach or impugn the character of a man. As an example, she cites to the 1837 opinion,  Bakeman v. Rose, 18 Wend. 146, 150 (N.Y. 1837), in which the  Court of Appeals of New York declared that:

“[I]t is perfectly well settled, both in [New York] and in England” that evidence that a person had a  reputation for committing crimes, such as being a “murderer, forger, adulterer, gambler, [or] swindler,”  could not be admitted to impeach a witness.

Conversely, when the witness at issue was a woman, and especially when she was testifying at a rape or sexual assault trial, courts frequently admitted reputation testimony.  Simon-Kerr cites to the 1817 opinion, Commonwealth v. Murphy, 14 Mass. 387, 388 (1817), where the Supreme Judicial Court of Massachusetts allowed the character of a female witness in a rape trial to be attacked through reputation testimony concerning her alleged prostitution and out-of-wedlock children, declaring that:  

“[t]he credibility of a witness may . . . be properly impeached, by proving her to be of such a  character.”

Simon-Kerr notes that Murphy “continued to have currency in other jurisdictions for nearly a century”  and explains how this influence makes sense given the prevailing view of a woman’s honor at the time.  While a man’s honor was seen as linked with his honesty, a women’s honor (and her truthfulness) was seen as inextricably intertwined with her sexual virtue.  It was not, however, a woman’s actual sexual virtue that was most important but her perceived sexual virtue, which Simon-Kerr makes clear by citing to several influential authors of the time, such as Jean-Jacques Rousseau, who wrote in his influential Émile that:

Worth alone will not suffice, a woman must be thought worthy; nor beauty, she must be admired;  nor virtue, she must be respected. A woman’s honour does not depend on her conduct alone, but  on her reputation, and no woman who permits herself to be considered vile is really virtuous.

This prevailing view in turn explains why    “the use of reputation  evidence was singularly damaging to female witnesses.”    And, according to Simon-Kerr, it might also explain why American courts accepted reputation and opinion testimony, rather than “specific act” evidence, as the preferred method for proving character.  She muses that:

courts may have made what scholars have labeled a  “misguided choice”  in favor of reputation evidence to prove character precisely because the question  arose so often in the context of female witnesses and their chastity. Since reputation seemed probative in  the context of female witnesses, courts dealing with character impeachments of women would have been  more inclined to adopt that mode of proof. In other words, reputation’s centrality to female honor may  explain both why it was especially problematic for women to be impeached using what Wigmore referred  to as “the secondhand, irresponsible product of multiplied guesses and gossip that we call ‘reputation'”  and why courts adopted reputation as the proper method for impeaching character.  

This seems to me to be an interesting and plausible conclusion as well as one that has an ironic postscript.  Based upon the way that rape victims were treated by the American court system, the federal Rape Shield Rule, Federal Rule of Evidence 412,  now precludes most evidence relating to victims’ prior sexual behavior/predisposition (as do most state counterparts).  While there are exceptions to this Rule, Rule412(b)(2)  makes clear that in a civil trial, “[e]vidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.” In other words, at least in the civil realm, the very types of cases that may have led to the preference for reputation testimony over “specific act” evidence for proving character now nearly never serve as the hosts for the admission of reputation testimony.

-Colin Miller

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