Justice Robie begins this opinion by saying: "What people say behind your back is your standing in the community in which
you live." I totally agree.
His next sentence: "On the other hand, what people do not say about you may also shed light on
your reputation in the community and, in turn, your character." Hmmm. I'm not entirely sure I completely understand where he's going with this thought, but, yeah, I guess that's somewhat true as well. For example, if people never really say about you that you're especially generous, then, yeah, it's likely true that you're not all that generous. Maybe not a miser or anything; if, at the same time, they don't say you're tightfisted, that probably in turn means you're not that either. So what they don't say about you is indicative of something as well. I agree with that too.
Justice Robie's next sentence: "That is the principle behind an optional part of CALCRIM No. 105 -- the standard instruction on witness
credibility -- which informs the jury that '[i]f the evidence establishes that a witness’s
character for truthfulness has not been discussed among the people who know him or her,
you may conclude from the lack of discussion that the witness’s character for truthfulness
is good.' (CALCRIM No. 105.)"
I've never really thought about CALCRIM No. 105 before. But upon reading it now, it seems to me that it's an instruction that's somewhat weird. If not entirely wrong.
But that's the exact opposite intuition that Justice Robie has. He's entirely fine with CALCRIM No. 105, but the more I think about it, the more that instruction seems -- at best -- entirely unhelpful, and at worst flatly wrong.
Look, if people around you are constantly talking about how trustworthy you are, then I agree that's a fair piece of evidence that you're incredibly trustworthy. Conversely, if they're constantly saying what a huge liar you are, then that's what you probably are.
But if they're not talking about either of those two things, to me, that's a fact that strongly suggests that you're neither of these things -- neither incredibly trustworthy nor an incredible liar. You're just normal. Middle of the road. A regular person. Probably you tell the truth on most things. But on some things, maybe you think it's okay to fudge things a little bit, or even (on occasion) to advance an outright lie. Maybe for good reasons, maybe not. You're a normal, regular person. In essence, if the community has no reason/need to comment on your truthfulness, that's strong evidence that you're at the default level of truthfulness. Average. Your normal person.
Yet CALCRIM No. 105 seems to say something else entirely. It expressly says that if people don't talk about your character for truthfulness, your character for truthfulness is "good".
"Good"? Nope. Not to me. I'd think that your character for truthfulness is "normal". Average. Not "good". Nothing special either way.
"Good" is not the same as "average". Not even in the everyone-gets-a-trophy America. If you tell me that someone has a "good" character for truthfulness, that word -- "good" -- tells me that they have an above-average character for truthfulness. Above average. That's what "good" means. Moreover, at an absolute minimum, the very fact that you're bothering to tell me that their character for truthfulness is good, rather than the default level, is to indicate that there's something different about their character from the default level of truthfulness. That's CALCRIM No. 105.
Yet the truth in the exact opposite. If no one talks about their character for truthfulness, that means that character is the default level. Normal. Average. Typical. Unexceptional.
Neither good nor bad.
The exact opposite of "good" under CALCRIM No. 105.
Now, maybe juries don't pay attention to CALCRIM No. 105 anyway. I certainly wouldn't. But that's hardly a defense of the instruction.
I'd just delete the thing. Apparently lawyers routinely ask witnesses, as the prosecutor did here, whether anyone talks one way or the other about the truthfulness of a particular person, and when the witness responds "No" -- that no one ever really says anything about whether that person is a liar or not -- the judge then instructs the jury under CALCRIM No. 105 that this testimony means that that person's character for truthfulness is good.
That just seems flatly wrong to me. Silence doesn't mean good. If I'm going on a blind date, and I ask someone who knows the person "Does anyone ever talk one way or another about her character for physical prowess in sports?" and he responds "No," no one in the universe would think that this response suggests that the date is "good" in sports. Sure, it may suggests that she's not known to be especially bad at sports. But it's no evidence at all that she's good at them.
Ditto for truthfulness.
I didn't have a real impression about CALCRIM No. 105 before reading this opinion, in which Justice Robie says that the instruction accurately reflects our intuition. But I have a definite impression now.
And it's the opposite of Justice Robie's.
I'd delete the thing. At best, irrelevant. Most likely, wrong. And harmful.
