1. In a trial in a federal court for bribery of a federal
officer, the defendant admitted the payment, but claimed that it
was induced by the officer, and the case hinged on whether the jury
believed the defendant or the officer. The defendant's character
witnesses testified that they had known the defendant for from 15
to 30 years, and that he had a good reputation for "honesty and
truthfulness" and for "being a law-abiding citizen." In
cross-examining them, the prosecutor was permitted to ask whether
they had heard that the accused had been arrested 27 years
previously for receiving stolen goods. The trial judge had
satisfied himself in the absence of the jury that the question
related to an actual
occurrence, and he carefully instructed the jury as to the
limited purpose of this evidence.
In the circumstances of this case and in view of
the care taken by the trial judge to protect the rights of the
defendant, permitting the prosecutor to ask this question was not
reversible error. Pp. 335 U. S.
2. The law does not invest the defendant with a presumption of
good character; it simply closes the whole matter of character,
disposition and reputation on the prosecution's case in chief. The
defendant may introduce evidence tending to prove his good
reputation, but, if he does so, it throws open the entire subject,
and the prosecution may then cross-examine defendant's witnesses to
test their credibility and qualifications, and may also introduce
contradictory evidence. Pp. 335 U. S.
3. Both the propriety and abuse of hearsay reputation testimony,
on both sides, depend on numerous and subtle considerations,
difficult to detect or appraise from a cold record. Therefore,
rarely and only on clear showing of prejudicial abuse of
discretion, will appellate courts disturb rulings of trial courts
on this subject. P. 335 U. S.
4. In this case, the trial judge was scrupulous to safeguard the
practice against any misuse. P. 335 U. S.
5. A character witness may be cross-examined as to knowledge of
rumors of defendant's prior arrest, whether or not it culminated in
a conviction. Pp. 335 U. S.
Page 335 U. S. 470
6. It is not only by comparison with the crime on trial, but by
comparison with the reputation asserted, that a court may judge
whether the prior arrest should be made the subject of inquiry. Pp.
335 U. S.
7. That the inquiry concerned an arrest 27 years before the
trial did not make its admission an abuse of discretion in the
circumstances of this case -- especially since two of the witnesses
had testified that they had known defendant for 30 years,
defendant, on direct examination, had voluntarily called attention
to his conviction of a misdemeanor 20 years before, and since no
objection was made on this specific ground. P. 335 U. S.
8. Notwithstanding the difficulty which a jury might have in
comprehending instructions as to the limited purpose of such
evidence, a defendant who elects to introduce witnesses to prove
his good reputation for honesty and truthfulness and for being a
law-abiding citizen has no valid complaint about the latitude which
existing law allows to the prosecution to meet this issue by
cross-examination of his character witnesses. Pp. 335 U. S.
165 F.2d 732 affirmed.
Petitioner was convicted in a federal district court of bribing
a federal officer. The Court of Appeals affirmed. 165 F.2d 732.
This Court granted certiorari. 333 U.S. 866. Affirmed,
335 U. S.
MR. JUSTICE JACKSON delivered the opinion of the Court.
In 1947, petitioner Michelson was convicted of bribing a federal
revenue agent. [Footnote 1
Government proved a
Page 335 U. S. 471
large payment by accused to the agent for the purpose of
influencing his official action. The defendant, as a witness on his
own behalf, admitted passing the money, but claimed it was done in
response to the agent's demands, threats, solicitations, and
inducements that amounted to entrapment. It is enough for our
purposes to say that determination of the issue turned on whether
the jury should believe the agent or the accused. [Footnote 2
On direct examination of defendant, his own counsel brought out
that, in 1927, he had been convicted of a misdemeanor having to do
with trading in counterfeit watch dials. On cross-examination, it
appeared that, in 1930, in executing an application for a license
to deal in second-hand jewelry, he answered "No" to the question
whether he had theretofore been arrested or summoned for any
Defendant called five witnesses to prove that he enjoyed a good
reputation. Two of them testified that their acquaintance with him
extended over a period of about thirty years, and the others said
they had known him at least half that long. A typical examination
in chief was as follows:
"Q. Do you know the defendant Michelson?"
"Q. How long do you know Mr. Michelson?"
"A. About 30 years."
"Q. Do you know other people who know him?"
"Q. Have you have occasion to discuss his reputation for honesty
and truthfulness and for being a law-abiding citizen?"
"A. It is very good. "
Page 335 U. S. 472
"Q. You have talked to others?"
"Q. And what is his reputation?"
"A. Very good."
These are representative of answers by three witnesses; two
others replied, in substance, that they never had heard anything
On cross-examination, four of the witnesses were asked, in
substance, this question:
"Did you ever hear that Mr. Michelson, on March 4, 1927, was
convicted of a violation of the trademark law in New York City in
regard to watches?"
This referred to the twenty-year-old conviction about which
defendant himself had testified on direct examination. Two of them
had heard of it and two had not.
To four of these witnesses, the prosecution also addressed the
question the allowance of which, over defendant's objection, is
claimed to be reversible error:
"Did you ever hear that, on October 11th, 1920, the defendant,
Solomon Michelson, was arrested for receiving stolen goods?"
None of the witnesses appears to have heard of this.
The trial court asked counsel for the prosecution, out of
presence of the jury, "Is it a fact according to the best
information in your possession that Michelson was arrested for
receiving stolen goods?" Counsel replied that it was, and, to
support his good faith, exhibited a paper record which defendant's
counsel did not challenge.
The judge also on three occasions warned the jury, in terms that
are not criticized, of the limited purpose for which this evidence
was received. [Footnote 3
Page 335 U. S. 473
Defendant petitioner challenges the right of the prosecution so
to cross-examine his character witnesses. The Court of Appeals held
that it was permissible. The opinion, however, points out that the
practice has been severely criticized, and invites us, in one
respect, to change the rule. [Footnote 4
] Serious and responsible criticism has
Page 335 U. S. 474
been aimed, however, not alone at the detail now questioned by
the Court of Appeals, but at common law doctrine on the whole
subject of proof of reputation or character. [Footnote 5
] It would not be possible to appraise
Page 335 U. S. 475
usefulness and propriety of this cross-examination without
consideration of the unique practice concerning character
testimony, of which such cross-examination is a minor part.
Courts that follow the common law tradition almost unanimously
have come to disallow resort by the prosecution to any kind of
evidence of a defendant's evil character to establish a probability
of his guilt. [Footnote 7
that the law invests the defendant with a presumption of good
character, Greer v. United States, 245 U.
, but it simply closes the whole matter of
character, disposition, and reputation on the prosecution's
case-in-chief. The State may not show defendant's prior trouble
with the law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be persuasive
that he is by propensity a probable perpetrator of the crime.
] The inquiry is not
rejected because character is
Page 335 U. S. 476
irrelevant; [Footnote 9
the contrary, it is said to weigh too much with the jury, and to so
overpersuade them as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a particular charge.
The overriding policy of excluding such evidence, despite its
admitted probative value, is the practical experience that its
disallowance tends to prevent confusion of issues, unfair surprise,
and undue prejudice. [Footnote
But this line of inquiry, firmly denied to the State, is opened
to the defendant because character is relevant in resolving
probabilities of guilt. [Footnote 11
] He may introduce affirmative testimony that
the general estimate of his character is so favorable that the jury
may infer that he would not be likely to commit the offense
charged. This privilege is sometimes valuable to a defendant, for
this Court has held that such testimony alone, in some
circumstances, may be enough to raise a reasonable doubt of guilt,
and that, in the federal courts, a jury in a proper case should be
so instructed. Edgington v. United States, 164 U.
Page 335 U. S. 477
When the defendant elects to initiate a character inquiry,
another anomalous rule comes into play. Not only is he permitted to
call witnesses to testify from hearsay, but indeed such a witness
is not allowed to base his testimony on anything but hearsay.
] What commonly
is called "character evidence" is only such when "character" is
employed as a synonym for "reputation." The witness may not testify
about defendant's specific acts or courses of conduct, or his
possession of a particular disposition or of benign mental and
moral traits; nor can he testify that his own acquaintance,
observation, and knowledge of defendant leads to his own
independent opinion that defendant possesses a good general or
specific character, inconsistent with commission of acts charged.
The witness is, however, allowed to summarize what he has heard in
the community, although much of it may have been said by persons
less qualified to judge than himself. The evidence which the law
permits is not as to the personality of defendant, but only as to
the shadow his daily life has cast in his neighborhood. This has
been well described in a different connection as
"the slow growth of months and years, the resultant picture of
forgotten incidents, passing events, habitual and daily conduct,
presumably honest because disinterested, and safer to be trusted
because prone to suspect. . . . It is for that reason that such
general repute is permitted to be proven. It sums up a multitude of
trivial details. It compacts into the brief phrase of a verdict the
teaching of many incidents and the conduct of years. It is the
average intelligence drawing its conclusion."
Finch J., in Badger v. Badger,
88 N.Y. 546, 552.
While courts have recognized logical grounds for criticism of
this type of "opinion based on hearsay" testimony,
Page 335 U. S. 478
it is said to be justified by "overwhelming considerations of
practical convenience" in avoiding innumerable collateral issues
which, if it were attempted to prove character by direct testimony,
would complicate and confuse the trial, distract the minds of
jurymen, and befog the chief issues in the litigation. People
v. Van Gaasbeck,
189 N.Y. 408, 418, 82 N.E. 718.
Another paradox in this branch of the law of evidence is that
the delicate and responsible task of compacting reputation hearsay
into the "brief phrase of a verdict" is one of the few instances in
which conclusions are accepted from a witness on a subject in which
he is not an expert. However, the witness must qualify to give an
opinion by showing such acquaintance with the defendant, the
community in which he has lived, and the circles in which he has
moved, as to speak with authority of the terms in which generally
he is regarded. To require affirmative knowledge of the reputation
may seem inconsistent with the latitude given to the witness to
testify when all he can say of the reputation is that he has "heard
nothing against defendant." This is permitted upon assumption that,
if no ill is reported of one, his reputation must be good.
] But this
answer is accepted only from a witness whose knowledge of
defendant's habitat and surroundings is intimate enough so that his
failure to hear of any relevant ill repute is an assurance that no
ugly rumors were about. [Footnote 14
Thus, the law extends helpful but illogical options to a
defendant. Experience taught a necessity that they
Page 335 U. S. 479
be counterweighted with equally illogical conditions to keep the
advantage from becoming an unfair and unreasonable one. The price a
defendant must pay for attempting to prove his good name is to
throw open the entire subject which the law has kept closed for his
benefit, and to make himself vulnerable where the law otherwise
shields him. The prosecution may pursue the inquiry with
contradictory witnesses [Footnote 15
] to show that damaging rumors, whether or not
well grounded, were afloat -- for it is not the man that he is, but
the name that he has, which is put in issue. Another hazard is that
his own witness is subject to cross-examination as to the contents
and extent of the hearsay on which he bases his conclusions, and he
may be required to disclose rumors and reports that are current
even if they do not affect his own conclusion. [Footnote 16
] It may test the sufficiency of
his knowledge by asking what stories were circulating concerning
events, such as one's arrest, about which people normally comment
and speculate. Thus, while the law gives defendant the option to
show as a fact that his reputation reflects a life and habit
incompatible with commission of the offense charged, it subjects
his proof to tests of credibility designed to prevent him from
profiting by a mere parade of partisans.
Page 335 U. S. 480
To thus digress from evidence as to the offense to hear a
contest as to the standing of the accused, at its best, opens a
tricky line of inquiry as to a shapeless and elusive subject
matter. At its worst, it opens a veritable Pandora's box of
irresponsible gossip, innuendo, and smear. In the frontier phase of
our law's development, calling friends to vouch for defendant's
good character, and its counterpart -- calling the rivals and
enemies of a witness to impeach him by testifying that his
reputation for veracity was so bad that he was unworthy of belief
on his oath -- were favorite and frequent ways of converting an
individual litigation into a community contest, and a trial into a
spectacle. Growth of urban conditions, where one may never know or
hear the name of his next-door neighbor, have tended to limit the
use of these techniques, and to deprive them of weight with juries.
The popularity of both procedures has subsided, but courts of last
resort have sought to overcome danger that the true issues will be
obscured and confused by investing the trial court with discretion
to limit the number of such witnesses and to control
cross-examination. Both propriety and abuse of hearsay reputation
testimony, on both sides, depend on numerous and subtle
considerations, difficult to detect or appraise from a cold record,
and therefore rarely, and only on clear showing of prejudicial
abuse of discretion, will Courts of Appeals disturb rulings of
trial courts on this subject. [Footnote 17
Wide discretion is accompanied by heavy responsibility on trial
courts to protect the practice from any misuse.
Page 335 U. S. 481
The trial judge was scrupulous to so guard it in the case be ore
us. He took pains to ascertain, out of presence of the jury, that
the target of the question was an actual event which would probably
result in some comment among acquaintances if not injury to
defendant's reputation. He satisfied himself that counsel was not
merely taking a random shot at a reputation imprudently exposed, or
asking a groundless question to waft an unwarranted innuendo into
the jury box. [Footnote
The question permitted by the trial court, however, involves
several features that may be worthy of comment. Its form invited
hearsay; it asked about an arrest, not
Page 335 U. S. 482
a conviction, and for an offense not closely similar to the one
on trial, and it concerned an occurrence many years past.
Since the whole inquiry, as we have pointed out, is calculated
to ascertain the general talk of people about defendant, rather
than the witness' own knowledge of him, the form of inquiry, "Have
you heard?" has general approval, and "Do you know?" is not
allowed. [Footnote 19
A character witness may be cross-examined as to an arrest
whether or not it culminated in a conviction, according to the
overwhelming weight of authority. [Footnote 20
] This rule is sometimes confused with that
which prohibits cross-examination to credibility by asking a
witness whether he himself has been arrested.
Arrest, without more, does not, in law any more than in reason,
impeach the integrity or impair the credibility of a witness. It
happens to the innocent as well as the guilty. Only a conviction,
therefore, may be inquired about to undermine the trustworthiness
of a witness.
Arrest, without more, may nevertheless impair or cloud one's
reputation. False arrest may do that. Even to be acquitted may
damage one's good name if the community receives the verdict with a
wink and chooses to remember defendant as one who ought to have
been convicted. A conviction, on the other hand, may be accepted as
a misfortune or an injustice, and even enhance the standing of one
who mends his ways and lives it down. Reputation is the net balance
of so many debits and credits that the law does not attach the
finality to a conviction when
Page 335 U. S. 483
the issue is reputation, that is given to it when the issue is
the credibility of the convict.
The inquiry as to an arrest is permissible also because the
prosecution has a right to test the qualifications of the witness
to bespeak the community opinion. If one never heard the
speculations and rumors in which even one's friends indulge upon
his arrest, the jury may doubt whether he is capable of giving any
very reliable conclusions as to his reputation.
In this case, the crime inquired about was receiving stolen
goods; the trial was for bribery. The Court of Appeals thought this
dissimilarity of offenses too great to sustain the inquiry in
logic, though conceding that it is authorized by preponderance of
authority. It asks us to substitute the Illinois rule which allows
inquiry about arrest, but only for very closely similar if not
identical, charges, in place of the rule more generally adhered to
in this country and in England. [Footnote 21
] We think the facts of this case show the
proposal to be inexpedient.
The good character which the defendant had sought to establish
was broader than the crime charged, and included the traits of
"honesty and truthfulness" and "being a law-abiding citizen."
Possession of these characteristics would seem as incompatible with
offering a bribe to a revenue agent as with receiving stolen goods.
The crimes may be unlike, but both alike proceed from the same
defects of character which the witnesses said this defendant was
reputed not to exhibit. It is not only by comparison with the crime
on trial, but
Page 335 U. S. 484
by comparison with the reputation asserted, that a court may
judge whether the prior arrest should be made subject of inquiry.
By this test, the inquiry was permissible. It was proper
cross-examination because reports of his arrest for receiving
stolen goods, if admitted, would tend to weaken the assertion that
he was known as an honest and law-abiding citizen. The
cross-examination may take in as much ground as the testimony it is
designed to verify. To hold otherwise would give defendant the
benefit of testimony that he was honest and law-abiding in
reputation when such might not be the fact; the refutation was
founded on convictions equally persuasive, though not for crimes
exactly repeated in the present charge.
The inquiry here concerned an arrest twenty-seven years before
the trial. Events a generation old are likely to be lived down and
dropped from the present thought and talk of the community, and to
be absent from the knowledge of younger or more recent
acquaintances. The court, in its discretion, may well exclude
inquiry about rumors of an event so remote, unless recent
misconduct revived them. But two of these witnesses dated their
acquaintance with defendant as commencing thirty years before the
trial. Defendant, on direct examination, voluntarily called
attention to his conviction twenty years before. While the jury
might conclude that a matter so old and indecisive as a 1920 arrest
would shed little light on the present reputation, and hence
propensities, of the defendant, we cannot say that, in the context
of this evidence and in the absence of objection on this specific
ground, its admission was an abuse of discretion.
We do not overlook or minimize the consideration that "the jury
almost surely cannot comprehend the Judge's limiting instructions,"
which disturbed the Court of Appeals. The refinements of the
evidentiary rules on this
Page 335 U. S. 485
subject are such that even lawyers and judges, after study and
reflection, often are confused, and surely jurors, in the hurried
and unfamiliar movement of a trial, must find them almost
unintelligible. However, limiting instructions on this subject are
no more difficult to comprehend or apply than those upon various
other subjects -- for example, instructions that admissions of a
codefendant are to be limited to the question of his guilt and are
not to be considered as evidence against other defendants, and
instructions as to other problems in the trial of conspiracy
charges. A defendant in such a case is powerless to prevent his
cause from being irretrievably obscured and confused; but, in cases
such as the one before us, the law foreclosed this whole
confounding line of inquiry unless defendant thought the net
advantage from opening it up would be with him. Given this option,
we think defendants in general, and this defendant in particular,
have no valid complaint at the latitude which existing law allows
to the prosecution to meet by cross-examination an issue
voluntarily tendered by the defense. See Greer v. United
States, 245 U. S. 559
We end, as we began, with the observation that the law
regulating the offering and testing of character testimony may
merit many criticisms. England and some states have overhauled the
practice by statute. [Footnote
] But the task of modernizing the longstanding rules on the
Page 335 U. S. 486
one of magnitude and difficulty which even those dedicated to
law reform do not lightly undertake. [Footnote 23
The law of evidence relating to proof of reputation in criminal
cases has developed almost entirely at the hands of state courts of
last resort, which have such questions frequently before them. This
Court, on the other hand, has contributed little to this or to any
phase of the law of evidence, for the reason, among others, that it
has had extremely rare occasion to decide such issues, as the
paucity of citations in this opinion to our own writings attests.
It is obvious that a court which can make only infrequent sallies
into the field cannot recast the body of case law on this subject
in many, many years, even if it were clear what the rules should
We concur in the general opinion of courts, text writers, and
the profession that much of this law is archaic, paradoxical, and
full of compromises and compensations by which an irrational
advantage to one side is offset by a poorly reasoned
counter-privilege to the other. But somehow it has proved a
workable, even if clumsy, system when moderated by discretionary
controls in the hands of a wise and strong trial court. To pull one
misshapen stone out of the grotesque structure is more likely
simply to upset its present balance between adverse interests than
to establish a rational edifice.
The present suggestion is that we adopt for all federal courts a
new rule as to cross-examination about prior arrest, adhered to by
the courts of only one state and
Page 335 U. S. 487
rejected elsewhere. [Footnote
] The confusion and error it would engender would seem too
heavy a price to pay for an almost imperceptible logical
improvement, if any, in a system which is justified, if at all, by
accumulated judicial experience, rather than abstract logic.
The judgment is
The first count charged petitioner with bribing in violation of
18 U.S.C. § 91, now 18 U.S.C. § 201, and the affirmance of his
conviction on this count by the Court of Appeals, 165 F.2d 732, is
the judgment here under review. The second count charged "offering"
the bribe as a violation of the same statute, but his conviction on
this count was reversed by the Court of Appeals, and is not here
Details appear in the Court of Appeals opinion, 165 F.2d
In ruling on the objection when the question was first asked,
the Court said:
". . . I instruct the jury that what is happening now is this:
the defendant has called character witnesses, and the basis for the
evidence given by those character witnesses is the reputation of
the defendant in the community, and, since the defendant tenders
the issue of his reputation, the prosecution may ask the witness if
she has heard of various incidents in his career. I say to you
that, regardless of her answer, you are not to assume that the
incidents asked about actually took place. All that is happening is
that this witness' standard of opinion of the reputation of the
defendant is being tested. Is that clear?"
In overruling the second objection to the question, the Court
"Again, I say to the jury there is no proof that Mr. Michelson
was arrested for receiving stolen goods in 1920, there isn't any
such proof. All this witness has been asked is whether he had heard
of that. There is nothing before you on that issue. Now would you
base your decision on the case fairly in spite of the fact that
that question has been asked? You would? All right."
The charge included the following:
"In connection with the character evidence in the case, I
permitted a question whether or not the witness knew that, in 1920,
this defendant had been arrested for receiving stolen goods. I
tried to give you the instruction then that that question was
permitted only to test the standards of character evidence that
these character witnesses seemed to have. There isn't any proof in
the case that could be produced before you legally within the rules
of evidence that this defendant was arrested in 1920 for receiving
stolen goods, and that fact you are not to hold against him; nor
are you to assume what the consequences of that arrest were. You
just drive it from your mind so far as he is concerned, and take it
into consideration only in weighing the evidence of the character
Footnote 8 to that court's opinion reads as follows:
"Wigmore, Evidence (3d ed.1940) § 988, after noting that 'such
inquiries are almost universally admitted' not as 'impeachment by
extrinsic testimony of particular acts of misconduct,' but as means
of testing the character 'witness' grounds of knowledge,' continues
with these comments:"
" But the serious objection to them is that practically, the
above distinction -- between rumors of such conduct, as affecting
reputation, and the fact of it as violating the rule against
particular facts -- cannot be maintained in the mind of the jury.
The rumor of the misconduct, when admitted, goes far, in spite of
all theory and of the judge's charge, towards fixing the misconduct
as a fact upon the other person, and thus does three improper
things -- (1) it violates the fundamental rule of fairness that
prohibits the use of such facts, (2) it gets at them by hearsay
only, and not by trustworthy testimony, and (3) it leaves the other
person no means of defending himself by denial or explanation, such
as he would otherwise have had if the rule had allowed that conduct
to be made the subject of an issue. Moreover, these are not
occurrences of possibility, but of daily practice. This method of
inquiry or cross-examination is frequently resorted to by counsel
for the very purpose of injuring by indirection a character which
they are forbidden directly to attack in that way; they rely upon
the mere putting of the question (not caring that it is answered
negatively) to convey their convert insinuation. The value of the
inquiry for testing purposes is often so small, and the
opportunities of its abuse by underhand ways are so great, that the
practice may amount to little more than a mere subterfuge, and
should be strictly supervised by forbidding it to counsel who do
not use it in good faith."
"Because, as Wigmore says, the jury almost surely cannot
comprehend the judge's limiting instruction, the writer of this
opinion wishes that the United States Supreme Court would tell us
to follow what appears to be the Illinois rule, i.e.,
such questions are improper unless they relate to offenses similar
to those for which the defendant is on trial. See Aiken v.
183 Ill. 215, 55 N.E. 695; cf. People v.
381 Ill. 206, 44 N.E.2d 923."
A judge of long trial and appellate experience has uttered a
warning which, in the opinion of the writer, we might well have
heeded in determining whether to grant certiorari here:
". . . evidence of good character is to be used like any other,
once it gets before the jury, and the less they are told about the
grounds for its admission, or what they shall do with it, the more
likely they are to use it sensibly. The subject seems to gather
mist which discussion serves only to thicken, and which we can
scarcely hope to dissipate by anything further we can add."
L. Hand in Nash v. United States,
54 F.2d 1006,
In opening its cyclopedic review of authorities from many
jurisdictions, Corpus Juris Secundum summarizes that the rules
regulating proof of character
"have been criticized as illogical, unscientific, and anomalous,
explainable only as archaic survivals of compurgation or of states
of legal development when the jury personally knew the facts on
which their verdict was based."
32 C.J.S. Evidence § 433.
Maguire, Evidence: Common Sense and Common Law
pp. 203-209 and
Greer v. United States, 245 U.
; 1 Wigmore, Evidence (3d ed., 1940) § 57; 1
Wharton, Criminal Evidence (11th ed., 1935) § 330. This was not the
earlier rule in English common law, and is not now the rule in some
civil law countries. 1 Wigmore, Evidence (3d ed., § 1940) §
This would be subject to some qualification, as when a prior
crime is an element of the later offense; for example, at a trial
for being an habitual criminal. There are also well established
exceptions where evidence as to other transactions or a course of
fraudulent conduct is admitted to establish fraudulent intent as an
element of the crime charged. See, e.g., Fall v. United
60 App.D.C. 124, 49 F.2d 506, cert. denied,
283 U.S. 867; Hatem v. United States,
42 F.2d 40,
282 U.S. 887; Williamson v. United
States, 207 U. S. 425
Allis v. United States, 155 U. S. 117
Wood v. United
16 Pet. 342.
As long ago as 1865, Chief Justice Cockburn said,
"The truth is, this part of our law is an anomaly. Although,
logically speaking, it is quite clear that an antecedent bad
character would form quite as reasonable a ground for the
presumption and probability of guilt as previous good character
lays the foundation of innocence, yet you cannot, on the part of
the prosecution, go into evidence as to character."
Reg v. Rowton,
10 Cox's Criminal Cases 25, 29-30.
1 Wigmore, Evidence (3d ed., 1940) § 55.
1 Wigmore, Evidence (3d ed., 1940) § 57.
1 Wigmore, Evidence (3d ed., 1940) § 56; Underhill, Criminal
Evidence (4th ed., 1935) § 165; 1 Wharton, Criminal Evidence (11th
ed., 1935) §§ 330, 336.
5 Wigmore, Evidence (3d ed., 1940) § 1609; Underhill, Criminal
Evidence (4th ed., 1935) § 170; 1 Wharton, Criminal Evidence (11th
ed., 1935) § 333.
People v. Van Gaasbeck,
189 N.Y. 408, 420, 82 N.E. 718.
The law apparently ignores the existence of such human ciphers as
Kipling's Tomlinson, of whom no ill is reported but no good can be
recalled. They win seats with the righteous for character evidence
purposes, however hard their lot in literature.
5 Wigmore, Evidence (2d ed., 1940) § 1614;
Underhill, Criminal Evidence (4th ed., 1935) § 171; 1 Wharton,
Criminal Evidence (11th ed., 1935) § 334.
1 Wigmore, Evidence (3d ed., 1940) § 58; Underhill, Criminal
Evidence (4th ed., 1935) § 167; 1 Wharton, Criminal Evidence (11th
ed., 1935) § 330.
A classic example in the books is a character witness in a trial
for murder. She testified she grew up with defendant, knew his
reputation for peace and quiet, and that it was good. On
cross-examination, she was asked if she had heard that the
defendant had shot anybody, and, if so, how many. She answered,
"Three or four," and gave the names of two, but could not recall
the names of the others. She still insisted, however, that he was
of "good character." The jury seems to have valued her information
more highly than her judgment, and, on appeal from conviction, the
cross-examination was held proper. People v. Laudiero,
N.Y. 304, 309, 85 N.E. 132. See also People v. Elliott,
163 N.Y. 11, 57 N.E. 103.
See, e.g., Mannix v. United States,
140 F.2d 250. It
has been held that the question may not be hypothetical, nor assume
unproven facts and ask if they would affect the conclusion,
Little v. United States,
93 F.2d 401; Pittman v.
42 F.2d 793; Filippelli v. United
6 F.2d 121, and that it may not be so asked as to
detail evidence or circumstances of a crime of which defendant was
accused. People v. Marendi,
213 N.Y. 600, 107 N.E. 1058.
It has been held error to use the question to get before the jury a
particular derogatory newspaper article. Sloan v. United
31 F.2d 902. The proof has been confined to general
reputation, and that among a limited group, such as fellow
employees in a particular building, held inadmissible. Williams
v. United States, 168 U. S. 382
This procedure was recommended by Wigmore. But analysis of his
innovation emphasizes the way in which law on this subject has
evolved from pragmatic considerations, rather than from theoretical
consistency. The relevant information that it is permissible to lay
before the jury is talk or conversation about the defendant's being
arrested. That is admissible whether or not an actual arrest had
taken place; it might even be more significant of repute if his
neighbors were ready to arrest him in rumor when the authorities
were not in fact. But, before this relevant and proper inquiry can
be made, counsel must demonstrate privately to the court an
irrelevant and possibly unprovable fact -- the reality of arrest.
From this permissible inquiry about reports of arrest, the jury is
pretty certain to infer that defendant had, in fact, been arrested,
and to draw its own conclusions as to character from that fact. The
Wigmore suggestion thus limits legally relevant inquiries to those
based on legally irrelevant facts in order that the legally
irrelevant conclusion which the jury probably will draw from the
relevant questions will not be based on unsupported or untrue
innuendo. It illustrates Judge Hand's suggestion that the system
may work best when explained least. Yet, despite its theoretical
paradoxes and deficiencies, we approve the procedure as calculated
in practice to hold the inquiry within decent bounds.
See Stewart v. United States,
70 App.D.C. 101, 104 F.2d
234; Little v. United States,
93 F.2d 401; Filippelli
v. United States,
6 F.2d 121.
See Mannix v. United States,
140 F.2d 250; Josey v.
77 U.S.App.D.C. 321, 135 F.2d 809; Spalitto
v. United States,
39 F.2d 782, and authorities there
The Supreme Court of Illinois, in considering its own rule which
we are urged to adopt, recognized that "the rule adhered to in this
State is not consistent with the great weight of authority in this
country and in England." People v. Hannon,
381 Ill. 206,
209, 44 N.E.2d 923, 924. Authorities in all states are collected in
State v. Shull,
131 Or. 224, 282 P. 237.
Criminal Evidence Act, 61 & 62, Vict. c. 36. See
51 L.Q.Rev. 443 for discussion of right to cross-examine
about prior arrests. For review of English and State legislation,
1 Wigmore, Evidence (3d ed., 1940) § 194, et
The Pennsylvania statute, Act of March 15, 1911, p.L. 20,
§ 1, discussed by Wigmore, has been amended, Act of July 3, 1947,
p.L. 1239, § 1, 19 P.S. § 711. The current statute and Pennsylvania
practice were considered recently by the Superior Court of that
state. Commonwealth v. Hurt,
163 Pa.Super. 232, 60 A.2d
The American Law Institute, in promulgating its "Model Code of
Evidence," includes the comment,
"Character, whenever used in these Rules, means disposition, not
reputation. It denotes what a person is, not what he is reputed to
be. No rules are laid down as to proof of reputation when
reputation is a fact to be proved. When reputation is a material
matter, it is proved in the same manner as is any other disputed
Rule 304. The latter sentence may seem an oversimplification in
view of the decisions we have reviewed.
See note 21
It must not be overlooked that abuse of cross-examination to
test credibility carries its own corrective. Authorities on
practice caution the bar of the imprudence, as well as the
unprofessional nature of attacks on witnesses or defendants which
are likely to be resented by the jury. Wellman, Art of Cross
Examination (1927) p. 167 et seq.
MR. JUSTICE FRANKFURTER, concurring.
Despite the fact that my feelings run in the general direction
of the views expressed by MR. JUSTICE RUTLEDGE in his dissent, I
join the Court's opinion. I do so because I believe it to be
unprofitable, on balance, for appellate courts to formulate rigid
rules for the exclusion of evidence in courts of law that, outside
them, would not be regarded as clearly irrelevant in the
determination of issues. For well understood reasons, this Court's
occasional ventures in formulating such rules hardly encourage
confidence in denying to the federal trial courts a power of
control over the allowable scope of cross-examination possessed by
trial judges in practically all State courts. After all, such
uniformity of rule in the conduct of trials in the crystallization
of experience, even when due allowance is made for the force of
imitation. To reject such an impressive body of experience would
imply a more dependable wisdom in a matter of this sort than I can
To leave the District Courts of the United States the discretion
given to them by this decision presupposes a
Page 335 U. S. 488
high standard of professional competence, good sense, fairness,
and courage on the part of the federal district judges. If the
United States District Courts are not manned by judges of such
qualities, appellate review, no matter how stringent, can do very
little to make up for the lack of them.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE MURPHY joins,
The Court's opinion candidly and interestingly points out the
anomalous features characterizing the exclusion and admission of
so-called character evidence in criminal cases. It also, for the
first time, puts the stamp of the Court's approval upon the most
anomalous, and, what is more important, the most unfair stage in
this evidentiary sequence.
There are three stages. The first denies the prosecution the
right to attack the defendant's reputation as part of its case in
chief, either by proof of bad general reputation or by proof of
specific derogatory incidents disconnected from the one charged as
the crime. The second permits the defendant at his option, to prove
by qualified witnesses that he bears a good general reputation, or
at least one not tarnished by ill repute. The witness is forbidden,
however, to go into particular incidents or details of the
defendant's life and conduct. The witness, once qualified, can
state only the general conclusions of the community concerning the
defendant's character as the witness knows that reputation. The
third stage comprehends the prosecution's rebuttal, and
particularly the latitude of cross-examination to be allowed.
I do not agree that this whole body of law is anomalous, unless
indeed all the law of evidence, with its numerous rules of
exclusion and exceptions to them, is to be so regarded. Anomalies
there are, no doubt, with much room
Page 335 U. S. 489
for improvement. But here, if anywhere, the law is more largely
the result of experience, of considerations of fairness and
practicability developed through the centuries, than of any effort
to construct a nicely logical, wholly consistent pattern of things.
Imperfect and variable as the scheme has become in the application
of specific rules, on the whole, it represents the result of
centuries of common law growth in the seeking of English-speaking
peoples for fair play in the trial of crime and other causes.
Moreover, I cannot agree that, in the sequence of the three
stages relating to character evidence, the anomalous quality is
equally present in each. In my judgment, there is a vast difference
in this respect between the rulings summarizing our experience in
the first two stages and those affecting the third.
Regardless of all considerations of mere logical consistency, I
should suppose there would be few now, whether lawyers or laymen,
who would advocate change in the prevailing rules governing the
first two stages of the sequence. In criminal causes especially,
there are sound reasons basic to our system of criminal justice
which justify initially excluding the Government from showing the
defendant's bad general character or reputation.
The common law has not grown in the tradition of convicting a
man and sending him to prison because he is generally a bad man or
generally regarded as one. General bad character, much less general
bad reputation, has not yet become a criminal offense in our
scheme. Our whole tradition is that a man can be punished by
criminal sanctions only for specific acts defined beforehand to be
criminal, not for general misconduct or bearing a reputation for
That tradition lies at the heart of our criminal process. And it
is the foundation of the rule of evidence which denies to the
prosecution the right to show generally or by specific details that
a defendant bears a bad general
Page 335 U. S. 490
estimate in his community. In the light of our fundamental
conceptions of crime and of the criminal process, there is nothing
anomalous in this exclusion. It is designed to restrain proof to
the limits of the charge, and to prevent conviction for one offense
because perhaps others, or misconduct not amounting to crime at
all, have been perpetrated or are reputed generally to lie at the
The rule which allows the defendant to prove his good standing
by general reputation is, of course, a kind of exception to the
hearsay rule of exclusion, though one may inquire how else could
reputation be proved than by hearsay, if it is to be proved at all.
This, indeed, presents the substantial question. Apart from its
long acceptance, Edgington v. United States, 164 U.
, the rule allowing the evidence to come in rest
on very different considerations from the one which forbids the
Government to bring in proof of bad public character as part of its
case in chief. The defendant's proof comes as rebuttal. It is
subject to none of the dangers involving the possibility of
conviction for generally bad conduct or general repute for it which
would characterize permitting the prosecution initially to show bad
general reputation. The basic reason for excluding the latter does
not apply to the defendant's tender of proof.
On the positive side the rule is justified by the ancient law
which pronounces that a good name is rather to be chosen than great
riches. True, men of good general repute may not deserve it. Or
they may slip and fall in particular situations. But, by common
experience, this is more often the exception than the rule.
Moreover, most often in close cases, where the proof leaves one in
doubt, the evidence of general regard by one's fellows may be the
weight which turns the scales of justice. It may indeed be
sufficient to create a clear conviction of
Page 335 U. S. 491
innocence or to sow that reasonable doubt which our law requires
to be overcome in all criminal cases before the verdict of guilty
can be returned.
The apparent anomaly which excludes the prosecution's proof of
bad character in the beginning but lets in the defendant's proof of
good character is thus only apparent. It is part and parcel of our
scheme which forbids conviction for other than specific acts
criminal in character and which, in their trial, casts over the
defendant the presumption of innocence until he is proved guilty
beyond all reasonable doubt. To take away his right to bring in any
substantial and pertinent proof bearing upon the existence of
reasonable doubt is so far to nullify the rule requiring removal of
that doubt. I reject the Court's intimation that these
considerations have to some extent become obsolete or without
substantial effects because we now live in cities more generally
than formerly. They are basic parts of our plan, perhaps the more
important to be observed because so much of our life now is
But, for a variety of reasons, the law allows the defendant to
prove no more than his general reputation, by witnesses qualified
to report concerning it. He cannot show particular acts of virtue
to offset the proof of his specific criminality on any theory that
"by their fruits ye shall know them." Whether this be because such
proof is irrelevant, is too distracting and time-consuming, is
summarized in the general report of good character, or perhaps for
all of these reasons, the rule is settled, and I think rightly,
which restricts the proof to general repute.
Thus far, whatever the differences in logic, differences which
as usual inhere in the premises from which thinking starts, there
is no general disagreement or dissatisfaction in the results. All
of the states, and the federal judicial
Page 335 U. S. 492
system as well, approve them. No one would open the doors
initially to the prosecution. No one would close them to the
But the situation is different when we come to the third stage,
that of the prosecution's rebuttal. Obviously rebuttal there should
be, when the defendant has opened a line of inquiry closed to the
prosecution and has sought to gain advantage by proof which it has
had no chance to counteract. But the question of how the rebuttal
shall be made presents the difficult problem.
There can be no sound objection, of course, to calling witnesses
who will qualify, as the witnesses for the defense are required to
do, but who also will contradict their testimony. And the
prosecution may inquire concerning the qualifications of the
witnesses for the defense to speak concerning the defendant's
general reputation. Thus far, there is nothing to exceed the bounds
of rebuttal or take the case out of the issues as made.
But these have not been the limits of proof and
cross-examination. For, in the guise of "testing the standards of
the witness" when he speaks to reputation, the door has been thrown
wide open to trying the defendant's whole life, both in general
reputation and in specific incident. What is worse, this is without
opportunity for the defendant to rebut either the fact or the
innuendo for which the evidence is tendered more generally than
otherwise. Hardly any incident, however remote or derogatory, but
can be drawn out by asking the witness who testifies to the
defendant's good character, "Have you heard this" or "Have you
heard that." And many incidents, wholly innocent in quality, can be
turned by the prosecutor, through an inflection or tone, to cast
aspersion upon the defendant by the mere asking of the question,
without hope of affirmative response from the witness.
The dangers, the potential damage and prejudice to the defendant
and his cause, have not been more clearly summarized
Page 335 U. S. 493
than in the excerpt from Wigmore's classic treatise, quoted in
note 4 of the Court's opinion
p. 335 U. S. 473
His summary of the consequences produced by the rule bears
repetition and greater emphasis. He said:
"The rumor of the misconduct, when admitted, goes far, in spite
of all theory and of the judge's charge, towards fixing the
misconduct as a fact upon the other person, and thus does three
improper things -- (1) it violates the fundamental rule of fairness
which prohibits the use of such facts, (2) it gets at them by
hearsay only, and not by trustworthy testimony, and (3) it leaves
the other person no means of defending himself by denial or
explanation, such as he would otherwise have had if the rule had
allowed that conduct to be made the subject of an issue."
Wigmore, Evidence (3d ed., 1940) § 988.
These consequences are not denied. But it is said two modes of
protection are available to the accused. One is to refrain from
opening the inquiry into his reputation. That answer would have
weight if the rebuttal were limited to inquiry concerning the
witness' opportunity for knowing the accused and his reputation and
to producing contrary evidence by other witnesses of the same
general sort as that which is refuted. But if the rule is sound
which allows the accused to show his good repute and restricts him
to that showing, it not only is anomalous, it is highly unjust, to
exact, as the price for his doing so, throwing open to the
prosecution the opportunity not only to rebut his proof, but to
call in question almost any specific act of his life, or to
insinuate, without proving, that he has committed other acts,
leaving him no chance to reply. A fair rule either would afford
this chance or would restrict the prosecution's counter-proof in
the same way his own is limited. The prevailing rule changes the
whole character of the case in a manner the rules applying to the
two earlier stages seek to avoid.
Page 335 U. S. 494
Nor is it enough, in my judgment, to trust to the sound
discretion of trial judges to protect the defendant against
excesses of the prosecution. To do this effectively, they need
standards. None is provided under the Court's ruling; indeed, it
would be difficult to provide them except for each case and
question as they might arise.
The facts in this case, it seems to me, show the inadequacy of
any such general and largely unrestricted delegation. They
demonstrate how far and how unfairly the prosecution may be allowed
to go in bringing extraneous and immaterial matters to the jury's
attention, with however a probable effect of prejudice. Petitioner
himself had made a clean breast of his twenty-year-old conviction
for violating the New York trademark laws. That fact, of course,
was of some use for testing his character witnesses' standards for
speaking to his general repute, although the conviction was so old
that conceivably it could have but little weight on the accused's
reputation in 1947.
Then the prosecution went back seven years further and inquired
whether the witnesses had heard that petitioner was arrested "on
October 11th, 1920" for receiving stolen goods. None of the
witnesses had heard of this fact. The court solemnly instructed the
jury that they were not to consider that the incident took place,
that all that was happening was that the prosecutor was testing the
witness' standard of opinion of the accused's reputation. This
after the court, out of the jury's presence, had required the
prosecutor to make proof satisfactory to the court that the
incident had taken place.
The very form of the question was itself notice of the fact to
the jury. They well might assume, as men of common sense, that the
court would not allow the question if the fact were only fiction.
And why "on October 11th, 1920", rather than merely "in 1920", or
"Have you ever heard of the defendant's being arrested other
Page 335 U. S. 495
for the trademark violation?" Why also "for receiving stolen
goods?" In my opinion, the only answers to these questions are not
that the prosecution was "testing the witness' standard of opinion
of reputation," but that it was telling the jury what it could not
prove directly, and what the petitioner had no chance to deny --
namely, that he had been so arrested -- and thereby either
insinuating that he had been convicted of the crime or leaving to
the jury to guess that this had been the outcome. The question was
a typical abuse arising from allowing this type of inquiry. It
should have been excluded. There is no way to tell how much
prejudice it produced.
Moreover, I do not think the mere question of knowledge of a
prior arrest is one proper to be asked, even if inquiry as to
clearly derogatory acts is to be permitted. Of course, man take
such an inquiry as reflecting upon the person arrested. But, for
use in a criminal prosecution, I do not think they should be
allowed to do so. The mere fact of a single arrest twenty-seven
years before trial, without further showing of criminal proceedings
or their outcome, whether acquittal or conviction, seldom could
have substantial bearing upon one's present general reputation;
indeed it is not per se
a derogatory fact. But it is put
in generally, and I think was put in evidence in this case, not to
call in question the witness' standard of opinion, but, by the very
question, to give room for play of the jury's unguarded conjecture
and prejudice. This is neither fair play nor due process. It is a
perversion of the criminal process as we know it. For it permits
what the rule applied in the first stage forbids -- trial of the
accused not only for general bad conduct or reputation, but also
for conjecture, gossip, innuendo, and insinuation.
Accordingly, I think this judgment should be reversed. I also
think the prevailing practice should be changed.
Page 335 U. S. 496
One judge of the Court of Appeals has suggested we do this by
adopting the Illinois rule, *
limiting inquiry concerning specific incidents to questions
relating to prior offenses similar to that for which the defendant
is on trial. Logically, that rule is subject to the same objections
as the generally prevailing one. But it has the practical merit of
greatly reducing the scope and volume of allowable questions
concerning specific acts, rumors, etc., with comparable reduction
of innuendo, insinuation, and gossip. My own preference, and, I
think, the only fair rule, would be to foreclose the entire line of
inquiry concerning specific incidents in the defendant's past, both
on cross-examination and on new evidence in rebuttal. This would
leave room for proper rebuttal without turning the defendant's
trial for a specific offense into one for all his previous
misconduct, criminal or other, and would put the prosecution on the
same plane with the defendant in relation to the use of character
evidence. This, it seems to me, is the only fair way to handle the
* See People v. Hannon,
381 Ill. 206, 211, 44 N.E.2d
923, for the most recent statement of the rule established by
Aiken v. People,
183 Ill. 215, 55 N.E. 695; cf. People
365 Ill. 524, 6 N.E.2d 845. In North Carolina, a
character witness may be asked on cross-examination about the
"general reputation of the defendant as to particular vices or
virtues," but not about rumors of specific acts of misconduct.
State v. Shepherd,
220 N.C. 377, 379, 17 S.E.2d 469, 470;
State v. Holly,
155 N.C. 485, 492, 71 S.E. 450. The
Arizona Supreme Court, which once followed the rule adopted by the
Court today, Smith v. State,
22 Ariz. 229, 196 P. 420,
more recently, in reversing a judgment because a character witness
was cross-examined as to his knowledge of specific acts of
misconduct, stated that cross-examination should be limited to
questions concerning the source of the witness' knowledge of the
accused's reputation, and should not include questions concerning
specific acts of misconduct. Viliborghi v. State,
275, 285, 43 P.2d 210.