## Facts

- Jack L. Gustafson, Sr. was charged in Arkansas with burglary, attempted theft, and solicitation of murder.
- The State’s theory included that Gustafson planned to burglarize a National Guard armory and sought to have Ray Seeley killed.
- While Gustafson was jailed on other matters, law enforcement placed a federal agent in his cell “wired for sound” and gave Gustafson a phone number to call about weapons and hiring someone to kill Seeley.
- After Gustafson was released on bond, he called the number and later met the undercover agent at the Red Bird Truck Stop in Batesville; their conversation was recorded and admitted at trial.
- Gustafson testified in his own defense.
- On cross-examination, the prosecutor asked Gustafson whether he was guilty of knowingly possessing a stolen pickup truck (an incident unrelated to the charged offenses).
- Gustafson invoked the Fifth Amendment privilege against self-incrimination and refused to answer, but the trial judge ordered him to respond.
- Gustafson then answered that he had knowingly possessed the stolen truck.
- The Independence County Circuit Court convicted Gustafson and imposed a total sentence of 50 years’ imprisonment.
- Gustafson appealed to the Arkansas Supreme Court, challenging (among other things) the impeachment questioning and the trial court’s order compelling an answer after he invoked the Fifth Amendment.

## Issues

1. Whether the trial court erred by compelling a testifying defendant, over a Fifth Amendment claim, to answer on cross-examination that he was guilty of unrelated criminal conduct (knowingly possessing a stolen pickup truck) used for impeachment.
2. Whether questioning about specific instances of misconduct not resulting in conviction was permissible impeachment under Arkansas Rule of Evidence 608(b), as distinct from impeachment by conviction under Rule 609.

## Decision

- The Arkansas Supreme Court reversed Gustafson’s convictions and remanded for a new trial.
- The court held that it was prejudicial error to require Gustafson to answer the stolen-pickup question after he asserted the Fifth Amendment privilege.
- The court explained that Arkansas Rule of Evidence 608(b) restricts impeachment by specific instances of conduct and does not allow broad cross-examination about unrelated criminal acts merely to attack general character.
- The court rejected, on the record presented, Gustafson’s constitutional challenges to the undercover operation and the later truck-stop recording, noting that the State did not introduce jail-cell statements and that the recording admitted at trial did not warrant reversal.

## Legal Principles

- A witness’s credibility may be attacked on cross-examination, but Arkansas Rule of Evidence 608(b) limits inquiry into specific instances of conduct that did not result in conviction to matters that are clearly probative of truthfulness or untruthfulness and are subject to the trial court’s discretion.
- Impeachment by prior conviction is governed by Arkansas Rule of Evidence 609; impeachment by non-conviction misconduct is governed by Rule 608(b), and the two rules serve different functions and have different limits.
- Cross-examination under Rule 608(b) must be conducted in good faith and should be controlled to prevent unfair prejudice that outweighs any value on credibility.
- A defendant who testifies does not, by that act alone, surrender the Fifth Amendment privilege as to unrelated criminal conduct that could subject him to separate prosecution; compelling an answer to such a question after a valid claim of privilege is error.
- Forcing a defendant to admit, in front of the jury, guilt of an unrelated offense can be highly prejudicial when credibility is disputed, and such prejudice may require a new trial.

## Conclusion

The Arkansas Supreme Court reversed and remanded because the trial court ordered Gustafson to answer a cross-examination question asking him to admit guilt to unrelated stolen-truck possession after he invoked the Fifth Amendment, and the court concluded this improper impeachment exceeded the limits of Rule 608(b) and amounted to prejudicial error requiring a new trial.


Gustafson v. State, 590 S.W.2d 853 (1979)