Broad Ruling on Right to Present Evidence of Bad Reputation in Community for Truth and Veracity

by
Jill Paperno
Second Assistant Monroe County Public Defender

In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.

As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."

And

"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."

This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.