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When a prosecutor inquires on cross-examination whether a defendant's character witness "has heard" of the defendant's prior arrests or convictions, such cross-examination is not admitted to establish that such events took place, but only to test the foundations and reliability of the witness' testimony. It is, in general, inadmissible to establish the defendant's bad character or his propensity to commit the crime charged, and the defendant is entitled to a limiting instruction. Nonetheless, the risks of undue prejudice to the defendant are great, and the inadequacy of a cautionary instruction to protect the interests of the defendant is obvious.
As the result of domestic quarrels, Irene Awkard had been arrested for assault with a dangerous weapon and had been previously convicted for disorderly conduct. Awkard had two character witnesses in the instant case. The United States cross-examined them, asking them if they were aware of the prior arrests and conviction. One character witness was reverend who had known her as a child in a different community. The other character witness was a former supervisor whose knowledge of Awkard ended two and three years before the arrests. The trial judge provided cautionary instructions and admitted the testimony.
Did the trial judge err in permitting the prosecuting attorney to cross-examine Awkard’s character witnesses on Awkard’s prior arrests and conviction?
The court reversed the judgment. It was error to admit the reverend's cross-examination testimony because it went to reputation at an unrelated time in an unrelated place, it had been impeached, and it could have been further impeached without referring to Awkard’s prior arrests. It was also error to admit the former supervisor's cross-examination testimony because the questioning did not go to the testimony's credibility or accuracy, and only prejudiced Awkard.