Character Testimony: What if Mother Teresa Pulled a 'Bank Job'?
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stroock & stroock & lavan llp
as originally published in law.com
august 14, 2012
Character Testimony: What if Mother Teresa
Pulled a ‘Bank Job’?
By Joel Cohen
Some lawyers, now mostly unsuccessfully (but more her good works for the poor were extraordinary, as
successfully in the past), have argued the following to most everyone acknowledges her to have been one
constitute an appropriate jury instruction: “Ladies & of the most “hard-core” philanthropic persons
Gentlemen, You have heard character testimony imaginable. Although not yet canonized, Mother
introduced by the defendant. I charge you that Teresa was the closest thing to a living saint (although
having heard all of the evidence, if you have a -- unsurprisingly, given his reputation as a contrarian
reasonable doubt on the basis of the character -- the late Christopher Hitchens complained in his
testimony standing alone, meaning in and of itself, clergy-phobic rant “The Missionary Position” that
you must acquit the defendant.” Mother Teresa was no friend of the poor, only a
“friend of poverty”).
To be sure, the jury will be correctly told that a
“reasonable doubt” is a “doubt based upon a But crazy things can happen. Suppose, during her
(common sense) reason.” That reason, the lifetime, that Mother Teresa were charged with bank
defendant’s attorney will also argue, might be the robbery. And assume the eyewitnesses to it were
improbability that the defendant could have none other than the pope, Nelson Mandela and
committed the crime, given his incredible reputation former Watergate prosecutor Archibald Cox --
for honesty and integrity. witnesses of the utmost integrity. They become
unshakeable prosecution witnesses at trial, and all that
But is that the law as it exists today?
can save Mother Teresa is her almost universally
Mother Teresa of Calcutta was the iconic figure of sterling reputation for integrity and good deeds.
her day, enjoying -- and by most accounts, deserving Thousands, maybe even millions, of people who
-- a reputation of unimpeachable character. Even don’t know her personally (which they are not
aside from her reputation for honesty and integrity, required to, under the applicable rule of evidence)stroock & stroock & lavan llp
would willingly testify on her behalf, although the world -- a reputation which would make it virtually
judge would be well within trial management impossible for a juror to believe that he committed
discretion to limit the number of character witnesses the crime. A “standing alone” jury charge -- under
who would testify, lest they prove unfairly which a jury could basically grant absolution for an
cumulative. Still, witness after witness would make individual’s aberrant act(s) of criminal wrongdoing,
the alleged commission of robbery by Mother Teresa given a lifetime of reputed “clean living,” as
seem virtually impossible to any jury, and as a result, articulated in poetic witness encomia -- is largely out
the jury might very well acquit her. of favor in the courts. And well it should be. After all,
so many defendants (and white-collar defendants in
But let’s suppose her trial were, for example, before
particular) can easily dress up a trial defense in the
Judge Jed S. Rakoff of the U.S. District Court for the
pure white linen of charitable and communal acts
Southern District of New York. In presiding recently
over the trajectory of their lives so as to accord them
over the noteworthy insider trading trial of
what might constitute a “get-out-of-conviction-free”
Rajat Gupta, whose trial attorneys wanted to
card.
trumpet Gupta’s heralded reputation for
philanthropy, Rakoff essentially proclaimed what he As discussed further below, character or reputation
would do with such testimony even if Mother Teresa testimony is not technically a “wild card.” Still,
(Rakoff was clearly seeking the reputed epitome of lawyers who proffer it recognize its definite potential
virtue) were instead before him as a defendant: “If to cause juries to nullify damning evidence. Where
Mother Teresa were charged with bank robbery, the jurors become sufficiently wowed by a defendant’s
jury would still have to determine whether or not she reputed trait for integrity, they may be moved to
committed a bank robbery.” In light of Hitchens’ discard, or at least subordinate, the substantive
verbal assault on Mother Teresa, Rakoff might evidence of the crime itself. As a result, a jury’s
instead have chosen as his example Abraham Lincoln decision to simply disregard even the most powerful
or some other such seemingly peerless figure -- but evidence of guilt, perhaps due to the defendant’s
let’s stick here with Mother Teresa. likeability or favorable reputation, allows character
testimony to serve as a “back door” basis on which to
Given the Gupta prosecutor’s stated intention not to
nullify evidence. The risk is that the fears to which
refer to Gupta’s alleged “greed” at trial -- an
Judge Rakoff alluded in discussing potential trial
indication by the prosecutor that charity was not truly
testimony in Gupta could become reality.
an issue in the case -- the philanthropic side of
defendant Gupta’s life was simply not laid bare before What exactly may character/reputation witnesses
the jury. Would-be Mother Teresa-like “bank testify to? And how are jurors charged to deal with
robbers”: Watch out! Under Rakoff’s tersely stated such testimony? Specifically, three modes of such
conception, character testimony (which will not-really-substantive-evidence are allowed by Rule
obviously be raised in Gupta’s appeal, although the 405 of the Federal Rules of Evidence. No. 1: A
judge’s analysis seems to comport with Second witness can testify to the defendant’s reputation (“I
Circuit case law) is not technically a wild card that, have spoken to any number of people with
“standing alone,” can serve as a knockout knowledge of the defendant who say she is known
counterpunch to strong evidence of guilt. for being law-abiding and for her fine reputation for
honesty [or some other character trait if that trait is
Put differently, a jury can’t find reasonable doubt
admissible in the context of the particular criminal
even if it hears overwhelming evidence that the
charge].”) No. 2: A witness can testify that he knows
defendant has the singularly best reputation in the
2stroock & stroock & lavan llp
the defendant and has a particular opinion of his evidence when its probative value is substantially
character (“I have known the defendant for many outweighed by the danger of it being unfairly
years and my personal opinion is that he is an honest, prejudicial, confusing of the issues, wasting time, or
or law-abiding, person.”) No. 3: Where a person’s needlessly presenting cumulative evidence.
character or character trait is actually an element of
This is where the rubber meets the road. If Mother
the charge, such as the character trait of “honesty” for
Teresa were accused of holding up a bank, no matter
use in defending against a perjury charge (or, indeed,
how substantial an injustice such a prosecution might
an element of the gravamen of a civil claim), the
appear to be (perhaps even to Hitchens), her lawyer
defendant’s character may be proven by relevant
would not be permitted to flood the courtroom with
specific instances of the person’s conduct (“While the
witnesses who might cause a jury to “nullify” based
defendant is charged with falsely certifying corporate
on good character. And that’s probably the way it
documents, I was familiar with the contents of many
should be. Yes, character testimony has been
corporate documents he executed in which he always
permissible for centuries, but such testimony -- even
gave truthful certifications, even though truthfulness
in amalgam -- has limitations. Character testimony
in those instances was not always good for him
cannot be considered evidence of the witness’s
individually.”)
opinion that the defendant is not guilty. It may only
Sure, prosecutors are accorded powerful cross- be used in combination with all of the other evidence
examination tools to undermine such testimony. A in determining the guilt of the accused. Only where
prosecutor’s arsenal includes questions such as the totality of the evidence gives rise to a “reasonable
“Where exactly were you on August 5, the date on doubt” regarding guilt should testimony indicating
which Mother Teresa was charged with having the improbability that the defendant of good
robbed the Bank of Calcutta?” or “You’re testifying character committed the offense be permitted to
to what you believe to be Mother Teresa’s contribute to the jury’s decision to acquit.
reputation, even though you have never been on the
One supposes that, in addition to the traditional jury
same continent with her at any point in your life?” or
charge that Rakoff would have given in Gupta
“Although it is your opinion that she is totally honest,
(somewhat like what is described just above), a judge
you have no firsthand knowledge about anything
who presides over the trial of a Mr. Gupta or a
about which Mother Teresa has ever spoken?” Or,
Mother Teresa-like figure (or really any case) would
finally, “Did you know that on August 5, Mother
be concerned about one thing in particular: He
Teresa, wearing a burqa-like veil, walked into the
would want to avoid the possibility that the relevant
Calcutta Bank with a shotgun and shot the teller in
incriminating facts would be buried under a
the shoulder? And had you known, would that have
mountain of psalms in praise of the defendant,
changed your testimony today?”
authored by witnesses who weren’t present at the
Despite a prosecutor’s best cross-examination, a Bank of Calcutta the day Mother Teresa approached
persuasive witness’s favorable testimony regarding a Teller No. 1 with a gun pointed to his head.
defendant’s character may carry significant weight
True, Mother Teresa would have been entitled to
with a jury, especially where the witness is a respected
have a jury consider her defense. And the defense,
member of the community or has a particularly
given her reputation, might have been the
impressive CV. As a backstop to this (and one that
“improbability” that this particular defendant would
Judge Rakoff has imposed under Rule 403 of the
rob a bank in the first place. Still, even Mother Teresa
Federal Rules), a judge may exclude relevant
would not be entitled to have her jury compromised
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by hearing too much of a good thing, just as the address in deciding how much and what kind of
prosecution would not be entitled to have all 23 character testimony the Gupta trial jury would be
customers on Teller No. 1’s line pointing their fingers permitted to hear.
at the hapless nun who, according to a parade of
_____________________________
extremely credible witnesses, had seemingly been
caught red-handed. Joel Cohen is a partner in the New York office of
Stroock & Stroock & Lavan LLP, where he practices
And, by the way, if a latter-day Abraham Lincoln
white-collar criminal defense law. He also teaches
were the bank robber in question, the same rules of
Professional Responsibility at Fordham Law School.
admissibility and trial management would
The author is a regular columnist for Law.com. The
circumscribe his defense. Given the character
views expressed are his personal opinions.
testimony that Mother Teresa or Lincoln could
produce in their defense, even without the narrators
having known the defendants or been in their
For More Information
presence, it would certainly be hard to convict
Joel Cohen
without leveling the playing field by placing
212.806.5644
meaningful limits on the admission of such testimony.
jcohen@stroock.com
That is precisely the issue that Judge Rakoff sought to
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