Saturday, January 7, 2012
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.
So, let's say that pursuant to Montana Rule of Evidence 404(a)(2), defense counsel properly cross-examines a witness for the prosecution regarding the alleged victim's reputation for being a fighter. Can defense counsel now ask this witness about specific instances of fighting by the alleged victim? According to the recent opinion of the Supreme Court of Montana in State v. Daniels, 2011 WL 5357846 (Mont. 2011), the answer is "no."
In Daniels, Larry B. Daniels was convicted of deliberate homicide as a result of his killing of his adult son Buddy. At trial, the prosecution called the defendant's 13 year-old son Hagen as a witness for the prosecution. After Hagen testified on direct, defense counsel cross-examined him, and he testified to Buddy's reputation for being a fighter pursuant to Montana Rule of Evidence 404(a)(2) without objection from the State. Thereafter, defense counsel asked Hagen about specific instances of fighting by Buddy, but the State did object to these questions, and the trial court sustained these objections.
After the defendant was convicted, he appealed, claiming, inter alia, that the trial court erred in circumscribing defense counsel's interrogation of Hagen. According to the defendant, defense counsel should have been able to ask Hagen about specific instances of fighting by Buddy pursuant to the last sentence of Montana Rule of Evidence 405(a), which states that "[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct." The Supreme Court of Montana disagreed, concluding that
Rule 405(a) permits cross-examination about specific instances of conduct by a party who is adverse to the witness' reputation or opinion testimony, not by the same party. See § 26–1–101(1),MCA (emphases added) ("'Direct examination’ is the first examination of a witness on a particular matter. 'Cross-examination' is the examination of a witness by a party other than the direct examiner."); see also State v. Jones, 48 Mont. 505, 516, 139 P. 441, 445 (1914) (first emphasis in original) ("As the favorable [reputation] testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements."). Otherwise, a party could offer reputation evidence and thereby open the door to further examination about specific instances, an interpretation which would swallow the rule.