See also: CHARACTER; CONVICTIONS
IMPEACHMENT; INDICTMENTS; OTHER ACTS OR OCCURRENCES

1.  As Impeachment Generally

Arrests are not admissible to impeach a witness by showing that he or she has committed a crime–only convictions are admissible for this purpose.{footnote}FRE 609; Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168, 177 (1948); United States v. Ling, 581 F.2d 1118, 1121 (4th Cir. 1978); United States v. Labarbera, 581 F.2d 107, 108 (5th Cir. 1978); United States v. Hodnett, 537 F.2d 828, 829 (5th Cir. 1976); United States v. Dennis, 625 F.2d 782, 798 (8th Cir. 1980) (arrest on tax charges inadmissible; noting that charges did not bear on truthfulness); Rizzo v. United States, 304 F.2d 810 (8th Cir. 1962).
La. Rev. Stat. 15:495.
Hawk v. Superior Court of Solano County, 42 Cal. App. 3d 108, 116 Cal. Rptr. 713, cert. denied, 95 S.Ct. 2417, 44 L.Ed.2d 680; People v. Pratt, 759 P.2d 676, 681 (Colo. 1988) (dictum); Rolle v. State, 386 So.2d 3 (Fla. App. D3 1980); People v. Tyson, 137 Ill. App. 3d 912, 485 N.E.2d 523 (2d Dist. 1985); Commonwealth v. Haywood, 377 Mass. 755, 388 N.E.2d 648 (1979) (by statute); People v. Torres, 51 App. Div.2d 225, 380 N.Y.S.2d 654 (1st Dept. 1976); Commonwealth v. Warren, 250 Pa. Super. 522, 378 A.2d 1271 (1977); Bell v. State, 620 S.W.2d 116 (Tex.Crim. 1980).{/footnote} This is because arrests "happen[] to the innocent as well as the guilty,"{footnote}United States v. Ling, 581 F.2d 1118, 1121 (4th Cir. 1978) (quoting Michelson v. United States, 335 U.S. 469, 482 (1948)).{/footnote} and the probative value of an arrest is outweighed by its tendency to prejudice the jury.{footnote}United States v. Ling, 581 F.2d 1118, 1121 (4th Cir. 1978); United States v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978).{/footnote} Arrests are admissible in some cases, however, to show bias, motive or interest.{footnote}Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991), cert. denied 502 U.S. 879 (admissible to show arrested plaintiff’s bias against defendant police officer); Heath v. Cast, 813 F.2d 254 (9th Cir.), cert. denied, 484 U.S. 849 (1987) (in § 1983 suit against police alleging false arrest and brutality, plaintiff’s prior arrest properly brought out on cross-examination to show bias and motive for bringing action).
Robinson v. State, 681 S.W.2d 288 (Tex. App. San Antonio 1984).{/footnote}

2.  Impeachment of Character Witnesses

Generally, a party’s character witness may be impeached by asking the witness about a relevant arrest of the party, even though the arrest may not have resulted in a prosecution or conviction.{footnote}See generally FRE 405(a) (“On cross-examination [of character witnesses], inquiry is allowable into relevant specific instances of conduct.”); FRE 608(b):

Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence.  They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness…(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Michelson v. United States, 335 U.S. 469, 482 (1948); United States v. Evans, 569 F.2d 209 (4th Cir.), cert. denied, 435 U.S. 975 (1978); United States v. Edwards, 549 F.2d 362, 366-69 (5th Cir.), cert. denied, 434 U.S. 828 (1977); United States v. Jordan, 722 F.2d 353, 358 (7th Cir. 1983); United States v. Collins, 779 F.2d 1520 (11th Cir. 1986) (arrests and convictions);

Neely v. State, 469 So.2d 702, 704 (Ala.Crim.App.1985); People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556 (1981); State v. Morgan, 653 S.W.2d 257 (Mo. App. 1983); Crews v. United States, 514 A.2d 432 (D.C. App. 1986); Marcus v. United States, 476 A.2d 1134 (D.C. App. 1984); Morris v. United States, 469 A.2d 432, 434 (D.C. 1980); Butler v. State, 376 So.2d 937, 939-940 (Fla.App.1979); Bryant v. State, 236 Ga. 495, 224 S.E.2d 369 (1976); Montgomery v. State, 173 Ga.App. 570, 327 S.E.2d 770 (1985); Randolph v. State, 269 Ind. 31, 378 N.E.2d 828, 832-833 (1978) (rape case); State v. Johnson, 389 So.2d 372 (La. 1980); State v. Bagley, 378 So.2d 1356, 1358 (La. 1979); State v. Byrd, 676 S.W.2d 494, 505 (Mo. 1984); State v. Hendrix, 699 S.W.2d 779, 782 (Mo.App.1985); State v. Newte, 188 Neb. 412, 197 N.W.2d 403 (1972); State v. Polhamus, 62 Ohio Law Abs. 113, 106 N.E.2d 646, 648-649 (1951); Custer v. State, 561 P.2d 75, 79 (Okla.Crim.App.1977); State v. Lamoureaux, 558 A.2d 951 (R.I. 1989); State v. Sims, 746 S.W.2d 191, 194 (Tenn. 1988); Rochester v. State, 659 S.W.2d 834 (Tex.Crim.App.1983).
See generally, McCormick on Evidence § 191, p. 569 (3d ed. 1984); 2 Weinstein’s Evidence & 405[02] (1986); 3A Wigmore on Evidence § 988 (Chadbourn rev. 1970); Annot., 13 A.L.R.4th 796 (1982); 81 Am.Jur.2d Witnesses §§ 501-502 (1976); 98 C.J.S. Witnesses § 387(b)(2) (1957).
Contra N.J. R. Evid. 47; State v. Kramp, 651 P.2d 614, 618 (Mont. 1982) (arrests not resulting in convictions not properly inquired into); State v. LaPorte, 301 A.2d 146 (N.J. 1973); Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981) (arrests not resulting in conviction may not be used to impeach character witnesses); State v. Reeves, 391 S.E.2d 241, 243 (S.C. 1990) (arrest does not constitute “bad act” which can be used to impeach defendant’s chacracter witness; reversing conviction on one of two counts).
CHECK Contra People v. Perruquet, 454 N.E.2d 1051 (Ill. App. 1983) (prosecution for rape and deviant sexual behavior; testimony as to defendant’s good reputation for being chaste and law-abiding); Taylor v. State, 360 A.2d 430 (Md. 1976); Facyson v. State, 370 A.2d 158 (Md. App. 1977); State v. Lyles, 210 S.C. 87, 41 S.E.2d 625, 626-627 (1947).{/footnote}  See CHARACTER § 7.  Impeachment of Character Witnesses. 

The legitimate purpose of such questions is to show:

(1)  if the witness is unaware of the arrest, that the witness is not well-acquianted with the party, or the party’s reputation;{footnote}Michelson v. United States, 335 U.S. 469, 479  (1948).
People v. Wagner, 532 P.2d 105 (Cal. 1975); People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 561 (1981).{/footnote} 
(2)  if the witness was already aware of the specific act, that the witness’ standards for good character or reputation are suspect.

The trial court has the discretion, however, to preclude any reference to a prior arrest where the resulting prejudice substantially outweighs the probative value of the arrest.{footnote}FRE 403; Rogers v. United States, 534 A.2d 928, 933 and n. 6 (D.C. 1988) (factor to be considered is whether arrest made in public view so that community more likely to be aware of it); Morris v. United States, 469 A.2d 432, 435 (D.C. 1980).
{/footnote}  The arrest is likely to be viewed as particularly prejudicial where it was for a crime similar to the one for which the defendant is on trial.{footnote}Facyson v. State, 35 Md App 202, 370 A2d 158 (Md. App. 1977) (rape conviction reversed where character witness who testified to defendant’s veracity cross-examined regarding prior arrest for sex crime similar to crime charged); State v. Sims, 746 S.W.2d 191 (Tenn. 1988) (trial court must balance probative value against prejudice; reversing conviction for shoplifting where prosecution cross-examined character witness as to defendant’s prior arrest for shoplifting which had been expunged).{/footnote}

2(a). Arrests Which May Be Inquired Into

2(a)(i).  Relevance

Some courts have held that the misconduct must be relevant to a specific trait involved in the offense for which the accused is on trial.{footnote}State v. Williams, 545 So. 2d 1144 (La. App. 1989) (juvenile arrest concerned specific trait involved in offense charged); State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986) (court must conduct preliminary inquiry to determine relevance to offense charged); Miller v. State, 418 P.2d 220 (Okla. 1966) (must be relevant to specific trait involved in the offense for which the accused was on trial).
{/footnote}  Others have held that the misconduct is also admissible if it is relevant to the character trait asserted by the character witness.{footnote}Michelson v. United States, 335 U.S. 469, 483  (1948) (questions regarding defendant’s arrests for receiving stolen goods proper to impeach assertion that he was known as honest and a law abiding citizen); United States v. Bermudez, 526 F.2d 89, 95 (2d Cir. 1975) (where witness testified as to defendant’s character as law-abiding citizen, permissible to ask whether witness has heard of defendant’s arrest on narcotics charge); United States v. Fox, 473 F.2d 131, 135 (D.C. Cir. 1972) (prejudicial error to allow prosecution to ask a defense character witness questions concerning the defendant’s arrest for rape because "no obvious relationship between rape and veracity").
Harris v. State, 513 So. 2d 79 (Ala. App. 1987) (witness who testified to defenmdant’s veracity prpoerly cross-examined as to defendant’s arrest for counterfeiting); Wedgeworth v. State, 450 So. 2d 195 (Ala. App. 1984) (in murder case, character witness who testified to defendant’s good general reputation properly cross-examined as to defendant’s arrest for grand larceny); Hohman v. State, 669 P.2d 1316, 1326-1327 (Alaska App. 1983); State v. McGraw, 528 A.2d 821 (Conn. 1987) (in prosecution for burglary and sexual assault, where character witness testified to defendant’s honesty, question as to arrest for forgery illegal use of credit card proper; probative value outweighed any likely prejudice); De Jarnette v. State, 338 A.2d 117 (Del. Sup. 1975) (witness who testified to not having heard of defendant ever being in trouble properly questioned about defendant’s arrest for possessing marijuana); Maura v. United States, 555 A.2d 1015 (D.C. App. 1989) (in unlawful entry case, character witness who testified to defendant’s veracity properly cross-examined as to defendant’s arrest for robbery; prejudice minimal); Butler v. State, 376 So.2d 937 (Fla.App.1979); Forrest v. State, 655 N.E.2d 584 (Ind. App. 1995) (witness who testified to defendant’s peacefulness properly cross-examined as to defendant’s arrests for disorderly conduct and interference with law enforcement officer); People v. Robinson, 247 N.W.2d 308, 309 (Mich. App. 1976); State v. Krout, 451 N.E.2d 515, 518-519 (Ohio App. 1982); State v. Sims, 746 S.W.2d 191 (Tenn. 1988) (shoplifting arrest relevant to defendant’s truthfulness); Rochester v. State, 659 S.W.2d 834 (Tex.Crim.App.1983) (witness who testified to defendant’s veracity properly cross-examined as to defendant’s prior arrests bearing on veracity).
CHECK But see United States v. Diaz, 961 F.2d 1417 (9th Cir. 1992) (improper to to question defendant’s mother as to son’s propeensity to engage in drug‑dealing).
See also Butler v. State, 376 So. 2d 937 (Fla. App. 1979) (in prosecution for possession of marihjuana, witness who testified to defendant’s veracity improperly cross-examined about defendant’s other arrest for possession of marijuana; conviction reversed); Facyson v. State, 35 Md App 202, 370 A2d 158 (Md. App. 1977) (rape conviction reversed where character witness who testified to defendant’s veracity cross-examined regarding prior arrest for sex crime similar to crime charged).{/footnote}  Thus, where the defense improperly introduces character evidence as to a trait which is not relevant to the offense charged, it opens the door for the prosecution to cross-examine the witness as to conducr relevant to the character trait asserted by the witness, but not relevant to the offense charged.{footnote}State v. McGraw, 528 A.2d 821, 825 (Conn. 1987).{/footnote}

Noting of the strong relationship between guns and drugs, some courts have held that drug arrests may be admitted to impeach a witness who asserts that the defendant has a reputation for peacefulness.{footnote}Marshall v. U.S., 623 A.2d 551, 555 (D.C. 1992){/footnote}

The witness may be questioned about the arrest of a criminal defendant on the charges which are the subject of the trial.

2(a)(ii). Date of Arrest as a Factor

The ten-year "staleness" rule of FRE 609, which governs the use of convictions to impeach, is inapplicable to arrests used to question a character witness.{footnote}United States v. Edwards, 549 F.2d 362, 366-69 (5th Cir.), cert. denied, 434 U.S. 828, 98 S.Ct. 107, 54 L.Ed.2d 87 (1977).{/footnote}  Arrests which are remote in time are less likely to be admitted, however.{footnote}State v. Williams, 545 So. 2d 1144 (La. App. 1989) (juevile arrest not too remote in time); State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986) (court must conduct preliminary inquiry to determine whether arrest is too remote in time).{/footnote} 

Arrests which occured after the crime for which the defendant is on trial are normally deemed irrelevant,{footnote}United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973); State v. Kruse, 507 So. 2d 588 (Fla. 1987) (per curiam)
Greenfield v. State, 336 So. 2d 1205, 1207 (Fla. App. 1976) (dictum)
Wharton, Criminal Evidence, § 231 (2nd Ed. 1972); 5 Wigmore, Evidence, § 1618.{/footnote} but not where the character trait at issue is the defendant’s veracity and the post-offense arrest pertains to the defnedant’s veracity.{footnote}Greenfield v. State, 336 So. 2d 1205, 1207 (Fla. App. 1976).
See also State v. Lamoureaux, 558 A.2d 951 (R.I. 1989) (post-offense arrests properly subject of cross-examination of character witnesses who testified to defendant’s truthfulness; no discussion of whether arrests related to defendant’s truthfulness).
CHECK Contra State v. Casados, 225 N.W.2d 267 (Neb. 1975).{/footnote}

2(a)(iii).  Expunged and Juvenile Arrests

One court reversed a defendant’s conviction for shoplifting where the prosecution cross-examined a defense character witness as to the defendant’s prior arrest for shoplifting, which had been expunged.{footnote}State v. Sims, 746 S.W.2d 191, 199 (Tenn. 1988).{/footnote}

It has been held permissible to impeach a character witness with questions about juvenile arrests.{footnote}Green v. State, 352 So.2d 1149, 1151 (Ala. App. 1977); Askew v. United States, 540 A.2d 760 (D.C. App. 1988) (arrest admissible even though conviction set aside); Rogers v. United States, 534 A.2d 928, 932-33 (D.C. 1988); Hendron v. Commonwealth, 487 S.W.2d 275, 278 (Ky. 1972); State v. Knight, 323 So. 2d 765, 768 (La. 1975); State v. Williams, 545 So. 2d 1144 (La. App. 1989); Commonwealth v. Floyd, 431 A.2d 984, 992 n.7 (Pa. 1981); Love v. State, 533 S.W.2d 6, 10 (Tex. Crim. App. 1976).
But see Commonwealth v. Jenkins, 198 A.2d 497, 498 (Pa. 1964) (in murder trial, prosecution questions to witness as to whether she had heard defendant was arrested as a juvenile for burglary, mischief and larceny held improper and reversible error).{/footnote}

2(b).  Good Faith or Proof of Arrest and Public Knowledge Required

Of course, a witness may not be questioned about an arrest unless the questioner has a good faith basis for believing that the arrest actually occurred.  Often this issue is resolved by the cross-examiner furnishing the court with proof of the arrest.{footnote}United States v. Bermudez, 526 F.2d 89, 95 (2d Cir. 1975) (permissible to ask whether witness has "heard" of defendant’s arrest where prosecution supplies documentary proof of arrest to court).
People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556 (1981) (arrests demonstrated to trial judge by way of rap sheet); State v. Hinton, 479 P.2d 910 (Kan. 1971) (conviction reversed where prosecutor failed to show basis for questions regarding prior drunk driving arrest).
See also State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986) (court must conduct preliminary inquiry to determine that defendant was in fact arrested).{/footnote}
Some courts also require a preliminary showing that the arrest was somehow a matter of public knowledge{footnote}State v. Miller, 489 So. 2d 268, cert denied, 496 So. 2d 1030 (La. App. 1986).{/footnote} (e.g, by virtue of having been made in a public place).

2(c).  Circumstances of the Arrest and Underlying Offense

The relevant and admissible fact in these situations is whether the witness knew of or had heard about an arrest, not whether the party was in fact arrested,{footnote}People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 562 (1981) (“[T]he arrests themselves had not been introduced into evidence and were not properly in issue.”)
{/footnote} much less whether he actually committed the offense for which he was arrested.{footnote}But see authorities to the contrary cited at CHACTER § 7(c).  Good Faith or Proof of Other Misconduct Required.{/footnote}  Therefore it is not permissible to probe for the truth of the charges on which the party was arrested.{footnote}United States v. Bermudez, 526 F.2d 89, 95 (2d Cir. 1975).{/footnote} 

The questioner must accept whatever answer he receives from the character witness and may not go into unnecessary detail concerning the incident.{footnote}People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 562 (1981) (prosecutor properly limited question to general type of crimes for which the defendant had been arrested (aggravated assault, resisting arrest, kidnaping, assault with a deadly weapon) and the years in which the arrests occurred).
{/footnote}  One court approved of limitations on the questioning, observing:

In this case, the trial court, by prohibiting the state from delving into the number of counts or into any other particulars of the defendant’s prior arrest, ensured that the questions contained no more detail than was necessary to apprise the witness of the incidents to which the state was referring.  The risk of prejudice was minimized by preventing the jury from hearing anything other than the bare bones of the charges for which the defendant had been arrested.{footnote}State v. McGraw, 528 A.2d 821, 825 (Conn. 1987) (in prosecution for burglary and sexual assault, where character witness testified to defendant’s honesty, question as to arrest for forgery and illegal use of credit card held proper).{/footnote}

2(d).  Rebuttal

As should be clear from the discussion in 2(c), the party whose character witness has been impeached normally should not It has been held a proper exercise of discretion to preclude a party from rebutting the impeachment of his character witness by testifying himself as to the circumstances of the arrest.  As one court has stated:

[T]he arrests themselves had not been introduced into evidence and were not properly in issue. The questions were asked only for the purpose of discrediting, and addressed only the issue of, the witness’ competency. As illusory as the distinction may be, at issue is not whether the defendant was or was not arrested or convicted, but whether this particular character witness had sufficient knowledge of defendant’s reputation in the community to testify to it. Therefore, the testimony which defendant sought to introduce would have been irrelevant and was properly excluded{footnote}People v. Russell, 121 Cal. App. 3d 762, 175 Cal. Rptr. 556, 562 (1981).{/footnote}

3.  No Prior Arrests

A criminal accused may be permitted to testify that he has no prior arrests, as being probative of his general credibility, although this is a matter within the trial court’s discretion.{footnote}United States v. Blackwell, 853 F.2d 86 (2d Cir. 1988).{/footnote}

Bibliography

Wanda Ellen Wakefield, Annotation, Cross-Examination Of Character Witness For Accused With Reference To Particular Acts Or Crimes-Modern State Rules, 13 A.L.R.4th 796.