Family and friends may constitute a relevant "community" for testimony about an opposing witness’s poor reputation for truth and veracity. In People v. Fernandez (Ct. App. 6/2/2011) (Ciparick, J.) (5-2), the Court of Appeals held that the trial court deprived the jury of important information and abused its discretion by excluding testimony from the Defendant’s parents about the complainant’s reputation for truthfulness. The Defendant, 17 years old when indicted, had allegedly engaged in sexual conduct with the complainant, his then eight-year-old niece. During the relevant five month time period, the Defendant had been living with his parents, who unsuccessfully attempted to offer testimony about the complainant’s poor reputation for truthfulness among their large family.
At trial, the jury heard conflicting testimony. The complainant testified that she visited and was sexually abused by the Defendant in his home more than five times in 2005. By contrast, the Defendant denied any sexual encounters and asserted that only two visits occurred. His parents – the complainant’s biological great-aunt and uncle – corroborated his version of the events and added that a “house rule” prohibited the children from going upstairs without adult supervision.
After the Defendant’s parents established that they had known the complainant all her life and frequently spoke with relatives and friends about the complainant’s reputation for truthfulness, defense counsel asked the parents to identify that reputation. The People objected and stated that (1) no foundation had be established and (2) that the Complainant’s family and friends did not constitute a “community.” The trial judge agreed.
The Defendant was convicted of Sexual Abuse 1° and 2° and Endangering the Welfare of a Child, but was acquitted of the more serious Rape 1° and Sexual Conduct Against a Child 2° charges. The Defendant unsuccessfully moved to set aside the verdict pursuant to CPL 330.30 and argued that the trial court erred when it precluded the defense from eliciting testimony about the complainant’s reputation in the community for truthfulness. The Appellate Division affirmed, but the Court of Appeals reversed.
The Court began by stating that a community is not limited to one’s residential neighborhood. Further, once a proper foundation is established, the jury must evaluate the credibility of character witnesses who testifies and decide how much weight to give the views reported in the testimony. Whether family and friends constitute a relevant community for “purposes of introducing testimony pertaining to an opposing witness’ bad reputation for truth and veracity” was a question of first impression for the Court and was answered in the affirmative.
The Court held that the testimony from Collazo and Ramona Fernandez – the Defendant’s parents - provided a proper foundation for reputation evidence. They had known the complainant since her birth and were members of the same large, extended family – 25-30 people. This testimony sufficiently established a foundation to admit further testimony regarding the complainant’s poor reputation for truth and veracity in the community.
The majority emphasized that presenting “reputation evidence by a criminal defendant is a matter of right, not discretion,” assuming a proper foundation had been laid. Additionally, any purported bias could have been explored on cross-examination. The court granted a new trial.
Judge Graffeo dissented and argued that because a child’s emotional well-being is derived from “support and guidance, care and protection, and acceptance and affection” from relatives, the family members should not be allowed to provide testimony on this topic. Further, a jury would question the credibility of such testimony, which is likely biased. In addition to emphasizing the potentially disastrous psychological consequences for the child, the dissent identified alternative sources for reputation evidence, including teachers, school counselors, and other community members. These individuals would have been able to sufficiently address the child’s reputation without bias and avoid the negative impact on the child’s emotional welfare. (RB/LC)
