the defendant was convicted. Yet his conviction may be overturned.
In these circumstances, the Court is constrained to rule that the safest and fairest course for all concerned will be to prevent the government from asking the character witnesses about the perjury conviction which is on appeal. The government's request that it be permitted to ask such a question is, therefore, denied.
It would be proper, however, for the government to ask a character witness who has testified about the defendant's reputation for truth and veracity whether he has heard of the perjury charges that were made against the defendant. Michelson v. United States, 335 U.S. 469, 482, 483, 69 S. Ct. 213, 93 L. Ed. 168 (1948). An indictment for perjury, unlike an arrest for rape [ United States v. Fox, 154 U.S.App.D.C. 1, 473 F.2d 131 (1972)], a narcotics arrest [ United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973)], or convictions for drunkenness [ United States v. Wooden, 137 U.S.App.D.C. 1, 420 F.2d 251 (1969)] would seem to bear directly on a defendant's reputation in the community for truth and veracity. The relevant and probative value of such information would certainly outweigh any possible prejudice, if any, which might somehow arise from such a revelation.
The Court is concerned, however, that in posing a question about the charges of perjury, the government might get a response which refers to the conviction. Therefore, if Mr. Ehrlichman does call character witnesses who testify about his reputation for truth and veracity, and if the government then wishes to cross-examine such witnesses about the perjury charges which were made against the defendant, such cross-examination will be conducted out of the presence of the jury first, lest an improper or objectionable response be given and the Court need to give any instruction or explanation to the witness.
It is so ordered.
© 1992-2004 VersusLaw Inc.