Sherman & Plano, TX Criminal Defense Lawyer’s Take on Kavanaugh (Part 5)

SupremeCourtNight-300x101On direct examination, neither party can testify as to specific instances of misconduct to show truthfulness or untruthfulness.  However, 608(b) states “…[b]ut the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  (1) the witness; or  (2) another witness whose character the witness being cross-examined has testified about.”   Specific instances of untruthfulness do not appear to be a major piece of evidence yet, but Kavanaugh’s opponents have claimed that he has lied under oath several times so far.   If they were able to prove it extrinsically, they could potentially do so on cross-examination of him.

Character evidence is generally inadmissible in Court under Rule 404.  But, it plays a much bigger role in criminal cases.  A defendant without a criminal history is much more likely to put on evidence of good character or of a pertinent character trait.  Rule 404(a)(2) allows, in a criminal case in that “…a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait…”

Dr. Kavanaugh may want to offer a pertinent character trait about behaving appropriately around women.   However, if so, the Government would be able to offer contrary evidence to his behavior around women to rebut the same.   We have heard from his supporters, and we have heard from his detractors that he targeted women for clerkship hiring that “had a certain look.”   We also now have a second female classmate saying he stuck his penis in her face at a college drinking party.   Dr. Kavanaugh’s mentor has been removed from the Federal Bench for sexually inappropriate behavior, but that is likely too distant to be relevant, unless it could show that Kavanaugh was involved.   None of his former clerks have so far come forward against him, but in a real investigation, this would be an important part of the investigation.  If he offered any pertinent character trait, these would be offered against him as much as allowed.

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