Circuit Consensus: Examining Use Of Guilt-Assuming Hypotheticals

Where the evidence proffered under FRE 405(a) consisted of character opinion testimony of two witnesses who testified that the defendant, charged with mail fraud, was in their opinion a law abiding citizen, one opinion was admissible and the other excludable; although the defendant claimed the questions to these witnesses constituted impermissible guilt-assuming hypothetical questions, the circuit distinguished between guilt-assuming hypothetical questions posed to a "reputation" character witness and those posed to a "character" opinion witness; the former were impermissible and the latter may be permitted depending on the facts of the case, in United States v. Kellogg, 510 F.3d 188 (3d Cir. Dec. 7, 2007) (No. 05–1893), cert. denied, 129 S.Ct. 395 (2008)

FRE 405(a) permits the cross-examination of a character witness regarding the witness's knowledge of specific instances of the defendant's misconduct. This information could help the fact-finder evaluate the quality of the character witness testimony admitted. Most circuits that addressed this issue conclude that under the rule a party may not cross-examine the other party's character witness by asking whether the witness for his opinion of the defendant would change if the defendant were guilty of the charges against him. Similarly, the government may not cross-examine whether the character witness is aware that the defendant is guilty. These are guilt-assuming hypotheticals have little probative value because they assume the existence of the very facts which are the subject of the prosecution and undermine the presumption of innocence. A case decided by the Third Circuit presented some of these aspects of FRE 405(a).

In the case, Defendant Kellogg was the owner and operator of Johnston Laboratories, which analytically tested environmental samples. One test, known as Volatile Organic Chemicals (“VOC”), determined the presence of approximately fifty-six contaminants in water. Customers requested the test to be performed under an EPA protocol (Method 601/602). Kellogg caused his company to mail false reports indicating that EPA protocol Method 601/602 had been performed on submitted samples, even though his company did not have the equipment to perform this test and another laboratory, which served as a subcontractor for such tests, used a less comprehensive protocol than the EPA standard. Kellogg was charged with mail fraud based on false test reports and billing statements. Kellogg, 520 F.3d at 190-91.

At trial, two character witnesses testified on behalf of the defendant. The first witness, Saleh Malik, testified that the defendant was a law-abiding citizen. On cross examination, the prosecutor asked: “Do you have any knowledge about the way Mr. Kellogg ran his environmental laboratory back in 1998?” The defense objection was overruled with the trial court noting, “The government may test the opinions concerning character, and the testimony concerning reputation, [by] testing the witness’s knowledge of the defendant and his business....” Kellogg, 520 F.3d at 191. The witness responded: “I know generally, like, you know, he ran the laboratory, but I wasn’t aware how he ran the laboratory.” Kellogg, 520 F.3d at 191 n.3.

The second witness, Fred Pennington, Jr., also stated that the defendant was a law-abiding citizen. The prosecutor asked on cross-examination: the court allowed the collateral details:

Sir, would you agree with me that a person who knows that a laboratory used one particular analytical method, but then who reports out a completely different analytical method on final reports of analysis to its customers, would your opinion be different about that person being [a] law abiding citizen?
Is this a hypothetical question, or is this specific to this case?
I’m asking you a hypothetical question.
I think my opinion would be different.
Kellogg, 520 F.3d at 192.

The defense objected to this questioning but was overruled. However, the trial judge sua sponte instructed the jury about the difference between character and reputation testimony. The jury returned a verdict convicting the defendant. On appeal, he contended that the cross-examination of the two character witness was an error as the character witnesses had been asked to assume criminal conduct charged in the case in posing the question and that this had the efforct of undermining the presumption of innocence.

The circuit affirmed the admission of the cross-examination. According to the circuit, the first witness was not asked a guilt-assuming hypothetical. Rather the question probed whether the witness knew how the defendant ran his business. Since the witness provided his character opinion, the government could “test the foundation for that opinion by asking a question that could elicit a response demonstrating how well [testifying character witness] Malik knew [defendant] Kellogg in the relevant arena of day-to-day business.” This type of testimony is permitted under FRE 405(a) (“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.”). Kellogg, 520 F.3d at 192 (citing United States v. Shwayder, 312 F.3d 1109, 1120 (9th Cir. 2002) (cross-examination of a character witness assists the jury in assessing the reliability of the character testimony)).

The testimony of the second witness was different. The circuit noted that the questions raised the issue of whether guilt-assuming hypotheticals were admissible. The circuit cited two primary reasons that other circuits had barred guilt-assuming hypothetical questions. First, “a guilt-assuming hypothetical impairs the presumption of innocence and thus violates the defendant’s due process rights.” Kellogg, 520 F.3d at 196 (citations omitted). Second, guilt-assuming hypotheticals may be unfairly prejudicial under FRE 403 (citations omitted). Kellogg, 520 F.3d at 199 (citations omitted).

The circuit cited to a number of circuits that prohibited the use of guilt-assuming hypothetical questions. The circuit then joined “with the consensus of the Courts of Appeals that posing a guilt-assuming hypothetical to a reputation character witness is improper. Because a reputation character witness, by definition, can only provide testimony about the defendant’s reputation in the community, a person testifying regarding the defendant’s reputation at the time of the crime can only speculate about how information regarding the crime would affect the community’s assessment of the defendant, and a witness’s speculation in that regard is of no probative value at all.” Kellogg, 520 F.3d at 196 (citation omitted).

The Federal Evidence Blog has considered the use of guilt-assuming hypotheticals in other posts. Both with regard to when they are appropriate to use and when they are not permissible. See, Ninth Circuit On Not-So-Impermissible Guilt-Assuming Hypotheticals (examining case that affirmed there was no error in striking guilt-assuming hypotheticals since they were “impermissible in the context of the government's cross-examination of a defendant's character witnesses”; however finding no error in permitting the prosecution to ask “its own fact witnesses otherwise relevant questions that may have a guilt-assuming element”); and Close Question On Impermissible Guilt-Assuming Hypotheticals, (in fraud case, cross-examination of character witnesses did not include impermissible guilt-assuming hypothetical questions when the questions were based on the underlying charges).

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