HOUSE_OVERSIGHT_011374

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so let meet respond to that overview.

They reference Mueller and Kirkpatrick, a treatise

that we think is very instructive on this particular point.

Mueller and Kirkpatrick says, "It is true that ina

defamation case there is more latitude to introducing

reputational types of evidence. However, it's important to

remember, say Mueller and Kirkpatrick, that actual character is not so much the question as reputation."

And it follows that "specific instances of misconduct cannot be proved if they were not generally known because then

they would not affect reputation."

They go on to say that, "When a defendant's proof goes

to specific instances under 405(b), caution from the judge is in order. Proving misbehavior can, in effect, become a game of character assassination that adds insult to injury which courts can block by carefully considering relevancy issues and the

rule against unfair prejudice found in Rule 403." And so it is

against that backdrop that the Court should be considering these 405 issues.

What I would like to do is offer three illustrations of what I think is going to be a pervasive flaw in many of the arguments advanced by the defense.

So we heard that, "Your Honor, look under 405(b). The

fact that the mother -- plaintiff's mother described her as a

liar about using drugs and running away from home, that comes

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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