335 U.S. 469 (1948), 23, Michelson v. United States

Docket Nº:No. 23
Citation:335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168
Party Name:Michelson v. United States
Case Date:December 20, 1948
Court:United States Supreme Court

Page 469

335 U.S. 469 (1948)

69 S.Ct. 213, 93 L.Ed. 168



United States

No. 23

United States Supreme Court

Dec. 20, 1948

Argued October 14-15, 1948




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.

Held. 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. 470-487.

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. 475-479.

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. 480.

4. In this case, the trial judge was scrupulous to safeguard the practice against any misuse. P. 481.

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. 482-483.

Page 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. 483-484.

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. 484.

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. 484-485.

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, p. 487.

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

In 1947, petitioner Michelson was convicted of bribing a federal revenue agent.1 The Government proved a

Page 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.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 offense.

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?

A. Yes.

Q. How long do you know Mr. Michelson?

A. About 30 years.

Q. Do you know other people who know him?

A. Yes.

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 472

Q. You have talked to others?

A. Yes.

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 against Michelson.

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 [69 S.Ct. 217] 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.3

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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.4 Serious and responsible criticism has

Page 474

been aimed, however, not alone at the detail now [69 S.Ct. 218] questioned by the Court of Appeals, but at common law doctrine on the whole subject of proof of reputation or character.5 It would not be possible to appraise the

Page 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.6

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.7 Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, 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.8 The inquiry is not rejected because character is

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irrelevant;9 on 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 [69 S.Ct. 219] tends to prevent confusion of issues, unfair surprise, and undue prejudice.10

But this line of inquiry, firmly denied to the State, is opened to the defendant because character is relevant in resolving probabilities of guilt.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.S. 361.

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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.12 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...

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