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Evidence Outline - Professor Tilly - Campbell Law - Part 15

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 14 | Part 16 >

FRE 608(a) Reputation & Opinion as to Character for Truthfulness/Untruthfulness of Witness: (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

After character for truthfulness has been attacked, can support witness truthfulness through propensity evidence through opinion or reputation evidence

  • Can only support witness truthfulness when that trait has been attacked (must be specific attack on truthfulness)
    • I.E. – if witness’s perception was attacked → not rebutting w/ evidence of truthfulness, that is different than character for truthfulness

Identical to 404

  • (can only use opinion/reputation for this pertinent trait) but has to be attacked before supporting!
    • Can only do specific instance on cross (next section)

Supporting witness’ truthful character? = only if that truthful character has been attacked

  • Vigorous cross is insufficient
  • Narrow interpretation.
  • Bias does not implicate – Perception does not implicate – Prejudice does not implicate

If criminal D is a witness? Rule still applies same as any other W.

  • Limiting instruction under FRE 105

Can call one witness (“character witness”) to impeach character of a prior witness (“fact witness”)

  • Ex: John (“fact witness”) is the first witness to testify for the prosecution in an assault trial. John claims to have witnessed the assault. After the prosecution rests its case, Defendant calls Tom (“character witness”) who used to be John’s best friend. Tom testifies that John is known in the community as a liar.

“Opinion” standard is personal knowledge

  • Can be just from a few circumstances where you’ve dealt with the person (but remember those specific instances aren’t what come to evidence under this part of rule -- just the opinion itself) State v. Hernandez
    • Specific instances in which that opinion is based on may be inquired into on cross examination under 608(b) →

FRE 608(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination , allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

  1. the witness; or
  2. another witness whose character the witness being cross-examined has testified about.

“By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.” (I.E. – can still say “i plead da fif”)

Any witness may be cross-examined about specific instances that are probative of truthfulness or untruthfulness

  • (b)(2) Character witness may be cross-examined with specific instances committed by the fact witness.
    • Testing the basis of character witness’s testimony
      • How well does character witness know the fact witness?
      • How credible is the opinion/reputation?
        • Can’t use specific instances to support a witness’s opinion/claimed rep. but can use them to deconstruct it

Extrinsic evidence = Evidence other than testimony of the witness being crossed

  • You can ask the questions on cross, but you can’t bring in other witnesses or documents on that issue
    • I.E. – If you say to the witness on CX “is it true that you were arrested for fraud 5 years ago, and the witness denies it, even if you have the criminal records on-hand that show witness is lying you can’t admit them. Aka, you can’t “prove up the impeachment” (subject to Rule 609)

Specific Instances of Untruthfulness

  • No specific instances on direct to support opinion/reputation.
  • Specific instances of untruthfulness allowed on cross examination of any witness – fact or character (even if it is the defendant who took the stand like a dumbass) –to discredit.
    • Limited scope; acts that involve trait of dishonesty.
    • Fraud, forgery, false statements, perjury, theft by deception, material omissions from official documents.

But not- shoplifting, speeding, etc.

  • Subject to FRE 403, court “may” allow
  • Good faith requirement that specific act actually happened
  • Criminal convictions → go to Rule 609
  • No “extrinsic” evidence of specific instances of dishonest acts may
  • actually be admitted, but may be inquired into.

(possible exam trick) if evidence going towards element of claim for a party who was also a witness → this rule isn’t necessary to get it in because it is part of the substantive law (405(b))

(Recap) 608 starts w/ “except for criminal conviction under 609” →
See chart for how to go about this rule

FRE 609. Impeachment by Evidence of a Criminal Conviction

A. In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

  1. For a felony, the evidence:
    1. must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant ; and
    2. must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
  2. For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving – or the witness admitting – a dishonest act or false statement.
    1. (crimen falsi crimes: counterfeiting, fraud, perjury, etc.)
      1. But not shoplifting, simple theft, robbery, etc.
        1. Looking for DECEPTION in elements
    2. Even if the crime committed involved dishonest acts → this part of the rule doesn’t apply unless the actual ELEMENTS involved proving dishonesty
    3. Punishment doesn’t matter here!!!!
      1. 403 doesn’t apply here either

Applies to ALL witnesses who testify.

  • But still only applies when conviction is offered to prove character for truthfulness
  • No restriction to method of proof

Applies to criminal & civil cases.

Punishment that actually gets imposed doesn’t matter

For past felony (that isn’t crimen falsi): probative v. prejudicial value analysis varies based on whether witness is criminal defendant or not.

  • If criminal defendant → must be more probative than prejudicial
    • (not quite flip of 403, no “substantial” requirement)
  • If civil case or not criminal defendant → subject to regular 403

Probative value is based on how it sheds light on credibility, for bringing in conviction of criminal D witness? Look to:

  • Impeachment value of the prior crime.
    • I.E. – more the previous crime is related to veracity → more probative
  • Timing of the prior conviction and subsequent criminality.
    • Closer together → more probative of untruthfulness
  • Similarity between the prior crime and the charged one. (similarity goes towards prejudicial effect badly)
  • Importance of the defendant’s testimony.
  • Centrality of credibility
    • I.E. – need for full exploration of credibility is greatest when the case boils down to a he said she said contest

Keep in mind how this rule may not be necessarily be implicated when introducing prior conviction

  • I.E. – rebutting factual assertion made by witness who said “I’ve never dealt drugs” → statement can be impeached through prior conviction and this rule isn’t even considered (go to 803(22))
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