IMPROPER WITNESS CHARACTER EVIDENCE (TRUTHFULNESS) (J)

FRE 608

Questions that improperly bolster or attack the credibility of a witness for his or her character for truthfulness may be objected to. Opinion or reputation evidence can be offered on the truthfulness or untruthfulness of a witness. However, when this evidence is used to bolster a witness’s credibility, it can only be admitted after the witness’s credibility has been attacked. Furthermore, this rule limits character testimony to the trait of truthfulness. General character evidence is not permitted.

Examples

• “Mrs. Lincoln, you are under oath. Have you ever lied before?”
• “Are you an honest person?”
• “Please describe the viewing box in a way that’s consistent with your honest character.”
• “I’m only here to say what I saw. I am an honest person.”

FRE 608. A 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.

(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.

Summary

Similar to Rule 404(a), this rule allows character evidence to be introduced when it bears on a witness’s credibility. However, these types of questions are limited only to the trait of truthfulness. In accordance with Rule 405(a), both opinion and reputation evidence are allowed to prove a witness’s character for truthfulness. Additionally, a witness’s character for truthfulness may be bolstered on rebuttal after the witness’s character was attacked previously.

Rule 608 prohibits the use of extrinsic evidence to prove specific instances of conduct to attack or support credibility, unless that evidence is (1) used to show conviction of a crime pursuant to Rule 609; (2) explored during cross-examination and at the judge’s discretion to verify a witness’s character for truthfulness or untruthfulness; or (3) to bolster or attack the character of another witness to whose character the witness currently on the stand has testified.

On cross-examination, the attorney must have a good-faith basis to believe the witness actually engaged in conduct that is relevant to her character for truthfulness. If the witness on the stand denies the conduct, such acts may not be proved by extrinsic evidence, and the questioning party must accept the witness’s answer as is.

Lastly, as a note of warning, Rule 608(b) should not be over-interpreted. It only applies to a witness’s character for truthfulness or untruthfulness. It does not bar extrinsic evidence offered for general impeachment purposes, such as contradictions, prior inconsistent statements, bias, or mental capacity.

Case Law (Truthfulness)

• U.S. v. Abair, 746 F.3d 260 (7th Cir. 2014) (government lacked sufficient basis for believing defendant intentionally lied on student aid form and tax return)
• United States v. Holden, 557 F.3d 698 (6th Cir. 2009) (excluded evidence of witness’s prior drug treatment under 608, since prior drug use was not relevant to the witness’s character for truthfulness)
• United States v. Bah, 574 F.3d 106 (2d Cir. 2009) (where defendant offered character testimony through reputation for truthfulness in the community, trial court allowed cross-examination of character witness about former customer's letter accusing defendant of fraud)
• United States v. Jackson, 549 F.3d 963 (5th Cir. 2008) (testimony on victim’s reputation in prison community allowed, including his propensity for violence, but victim's disciplinary records involving specifics acts inadmissible under 608)
• U.S. v. Skelton, 514 F.3d 433 (5th Cir. 2008) (evidence introduced to contradict a witness’s testimony as to a material issue did not trigger Rule 608(b))
• U.S. v. Cudlitz, 72 F.3d 992 (1st Cir. 1996) (the crime of soliciting arson is not sufficiently probative of untruthfulness to be used in an attack on a witness’s character for veracity)
• U.S. v. DeGeratto, 876 F.2d 576 (7th Cir. 1989) (government lacked sufficient evidence to permit a good faith belief that DeGeratto knowingly helped the prostitution operation)
• U.S. v. Cole, 617 F.2d 151 (5th Cir. 1980) (it was proper under Rule 608(b) to impeach a witness by showing he submitted a false excuse for being absent from work)
• U.S. v. Reid, 634 F.2d 469 (9th Cir. 1980) (a character for dishonesty was reflected in a witness’s false statements in a letter)
• U.S. v. McClintic, 570 F.2d 685 (8th Cir. 1978) (the defendant's attempt to swindle a ring buyer was an act that reflected upon his character for truthfulness)