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CRIMINAL JUSTICE | WINTER 2024
trial tactics
to testify during the defense case-in-chief. But
there are atypical cases.
One Atypical Case
One atypical case is United States v. Johnson, 79
F.4th 684 (6th Cir. 2023). The court of appeals
described Kenneth Johnson as “an institution in
Cleveland politics,” serving as “[a] councilman
for the Buckeye-Shaker Square neighborhood
for 41 years.” This was one of the longest tenures
as a municipal leader in the country. Johnson’s
career came to an end when he, together with
his executive assistant and co-conspirator,
Garnell Jamison, was convicted on 15 charges.
Johnson was charged with and convicted of
using his position to fraudulently claim federal
reimbursements for payments he never made,
securing employment for his children in federally
funded programs in which they were not legally
eligible to work and depositing their earnings
into his own account, fraudulently claiming a
series of tax deductions, and encouraging and
assisting his son Elijah in submitting falsified
records as part of Elijah’s grand-jury testimony.
Jamison was convicted of assisting Johnson in
the criminal activity.
The Evidence Issue
One of the tax charges against Johnson focused
on his claimed charitable deductions for items
and services purportedly donated to a recre-
ation center located within his ward. During its
case-in-chief, the government called the Com-
missioner of Recreation, Samuel Gissentaner,
to testify about the city’s policies for accepting
recreation donations. More specifically, Gisssen-
taner testified that all recreation-center dona-
tions under $10,000 required his approval and
any donation over $10,000 required the City
Council to pass legislation before the donation
The Basic Rule
Although character evidence is generally inadmis-
sible to prove a party’s propensity—i.e., how that
party behaved on a specific occasion—rules like
Fed. R. Evid. 404(a)(2)A) provide an exception:
(a) Character Evidence. ***
(2) Exceptions for a Defendant or Victim in a
Criminal Case. The following exceptions apply in
a criminal case:
(A) 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. . .
If a defendant in a criminal case decides to of-
fer evidence of a pertinent character trait, rules
like Fed. R. Evid. 405(a) prescribe the types of
evidence that may be used to prove the trait:
(a) By Reputation or Opinion. When evidence
of a person’s character or character trait is
admissible, it may be proved by testimony about
the person’s reputation or by testimony in the
form of an opinion. On cross-examination of
the character witness, the court may allow an
inquiry into relevant specific instances of the
person’s conduct.
The first sentence limits the evidence offered
by the defendant to reputation and opinion. The
second sentence provides that a trial judge may
permit the prosecution to inquire into relevant
specific instances of conduct during cross-
examination to create doubts about positive
reputation or opinion testimony. Such cross-
examination was approved by the U.S. Supreme
Court in Michelson v. United States, 335 U.S. 469
(1948), at a time when the defendant was limited
to relying on reputation evidence. Rules like
Fed. R. Evid. 405 make clear that the same type
of cross-examination is available to a prosecu-
tor whether a defendant relies on reputation,
opinion, or both.
Typically, a defendant wishing to present
character evidence calls favorable witnesses
BY STEPHEN A. SALTZBURG
An Unusual Use of Character Evidence
STEPHEN A. SALTZBURG is the Wallace and
Beverley Woodbury University Professor at The
George Washington University Law School and is
a former chair of the Criminal Justice Section.
