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The Right To Present Reputation Testimony For Truth And Veracity


New York Court of Appeals   People v. Fernandez  2011 NY Slip Op 04540                            Decided June 2, 2011 

Issue: Whether the trial court improperly deprived defendant of his right to present testimony that complainant had a bad reputation in the community for truth and veracity.

Holding: The trial court’s decision to exclude testimony that the complainant had a bad reputation in the community for truth and veracity was an abuse of discretion as a matter of law and that a party has a right to call a witness to testify and impeach a key opposing witness with regard to reputation in the community for truth and veracity.  The presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid.  The trial court must allow such testimony so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity.  The Court of Appeals also held that the definition of “community” can be limited to just the family and is not necessarily one’s residential neighborhood (see analysis below).  No harmless error analysis is applicable.  Conviction vacated and remanded for new trial.

Facts: Defendant was charged with various crimes including course of sexual conduct, rape and sexual abuse.  It was alleged that he engaged in sexual conduct with eight year old niece.   Defendant denied any wrongdoing and at trial sought to introduce testimony of two family members regarding the complaining witness’ reputation for untruthfulness among their family and family friends.  The prosecution objected stating that the family and family friends was not a “community” within the meaning of the evidentiary rule allowing testimony regarding reputation for truth and veracity within the community.

Legal Analysis: The New York Court of Appeals stated that we have long held that a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity.  A trial court must allow such testimony once a proper foundation ahs been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity.

The Court of Appeals rejected the notion that one’s community was restricted to one’s residential neighborhood.  Rather a reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability.  People v. Bouton 50 NY2d 130 holding that a person might be better known in the community of his employment where opportunities to evidence the traits at stake may occur with greater frequency than in the environs of his dwelling place.  

Reliability – whether a character witness has established a proper basis for knowing a key opposing witness’ general reputation for truth and veracity – is a question of law for the court.   By contrast, the credibility of such character witness – whether that witness is worthy or unworthy of belief or is motivated by bias – is a factual question for the jury.

In this case the defendant sought to introduce evidence, through his parents, that the complainant had a bad reputation for truth and veracity among her family.  The Court of Appeals held that, assuming a proper foundation has been laid, family and friends can constitute a relevant community for such purpose.