Presentation of evidence - Character for truthfulness

Learning Outcomes

This article examines the methods under the Federal Rules of Evidence for attacking or supporting a witness's character for truthfulness. It covers impeachment through reputation or opinion testimony, cross-examination concerning specific instances of conduct, and impeachment by evidence of criminal conviction. After reading this article, you will understand the limitations and procedures governing the admissibility of character evidence related to witness credibility, enabling you to apply these principles to MBE questions.

MBE Syllabus

For the MBE, you are required to understand how a witness's character for truthfulness can be attacked or supported. This involves knowing the permissible methods of proof and the applicable limitations under the Federal Rules of Evidence. You should be prepared to:

  • Distinguish between using character evidence for propensity and using it for impeachment of a witness's credibility (specifically, character for truthfulness).
  • Identify the rules governing the use of reputation or opinion testimony concerning a witness's character for truthfulness (FRE 608(a)).
  • Analyze the limitations on inquiring into specific instances of a witness's conduct on cross-examination to attack or support truthfulness (FRE 608(b)).
  • Understand that extrinsic evidence is generally inadmissible to prove specific instances of conduct for impeachment purposes under FRE 608(b).
  • Apply the rules for impeaching a witness with evidence of a criminal conviction, including the types of crimes admissible and the required balancing tests (FRE 609).
  • Recognize when evidence of truthful character is admissible for rehabilitation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under FRE 608(a), evidence of a witness's character for truthfulness or untruthfulness may be admitted in the form of:
    1. Specific instances of conduct only.
    2. Reputation or opinion testimony only.
    3. Both specific instances of conduct and reputation/opinion testimony.
    4. Expert testimony regarding psychological evaluations.
  2. On cross-examination, an attorney asks a witness about a specific instance of conduct not resulting in a conviction, intending to attack the witness's character for truthfulness. If the witness denies the conduct, may the attorney introduce extrinsic evidence (e.g., testimony from another witness) to prove the conduct occurred?
    1. Yes, if the evidence is relevant to credibility.
    2. Yes, but only if the conduct constituted a felony.
    3. No, extrinsic evidence is generally not admissible to prove specific instances of conduct under FRE 608(b).
    4. No, unless the court grants special permission in the interest of justice.
  3. Under FRE 609, evidence of a witness's prior criminal conviction for a crime involving dishonesty or false statement is generally:
    1. Admissible only if it was a felony.
    2. Admissible only if its probative value outweighs its prejudicial effect.
    3. Admissible subject only to the 10-year time limit.
    4. Inadmissible unless the witness is the accused.
  4. Evidence of a witness's truthful character is admissible:
    1. At any time to bolster the witness's credibility.
    2. Only after the witness's character for truthfulness has been attacked.
    3. Only if the witness is a party to the case.
    4. Only in criminal cases.

Introduction

A witness's credibility is always relevant, as it helps the trier of fact determine the weight to give the testimony. One way to attack or support credibility is by introducing evidence about the witness's character for truthfulness or untruthfulness. The Federal Rules of Evidence place strict limits on how and when such character evidence may be presented.

Generally, character evidence is inadmissible to prove that a person acted in conformity with that character trait on a particular occasion (the "propensity rule" under FRE 404(a)). However, the credibility of a witness is an exception. FRE 608 and 609 specifically govern the admissibility of evidence concerning a witness's character for truthfulness. This involves distinct rules for reputation/opinion evidence, specific instances of conduct, and criminal convictions.

Reputation or Opinion Evidence (FRE 608(a))

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.

Key Term: Character for Truthfulness A witness's propensity to be truthful or untruthful, which is relevant to assessing the credibility of their testimony.

Attacking Truthfulness

Any witness who testifies puts their credibility at issue. Therefore, the opposing party may attack the witness's character for truthfulness by calling another witness to testify that the first witness has a poor reputation for truthfulness or to state their opinion that the first witness is untruthful.

Supporting Truthfulness (Rehabilitation)

Evidence of a witness's truthful character is admissible only after the witness's character for truthfulness has first been attacked. Simply cross-examining a witness vigorously or introducing evidence that contradicts the witness's testimony does not constitute an attack on character sufficient to open the door for rehabilitation evidence under this rule. The attack must specifically target the witness's propensity for dishonesty (e.g., by calling a witness to testify to the first witness's bad reputation for truthfulness or by impeaching with certain criminal convictions).

Method of Proof (FRE 608(a))

Under FRE 608(a), proof must be by reputation or opinion testimony. Testimony about specific instances demonstrating truthfulness or untruthfulness is not permitted on direct examination of a character witness testifying under this rule.

Specific Instances of Conduct (FRE 608(b))

While reputation or opinion testimony addresses general character, FRE 608(b) deals with specific acts relevant to truthfulness.

Key Term: Specific Instances of Conduct (for impeachment) Particular past actions of a witness (not resulting in a conviction) that are probative of their character for truthfulness or untruthfulness, inquiry into which may be permitted on cross-examination under FRE 608(b).

Inquiry on Cross-Examination

Subject to the court's discretion, specific instances of a witness's conduct may be inquired into on cross-examination of the witness if the conduct is probative of the witness's own character for truthfulness or untruthfulness. The inquiry must be made in good faith.

This allows questioning like: "Isn't it true you lied on your tax return last year?"

Extrinsic Evidence Prohibited

Crucially, 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 under FRE 608(b). This means that if the witness denies the conduct on cross-examination, the cross-examining attorney cannot introduce other evidence (like testimony from another witness or documents) to prove the conduct occurred. The attorney must "take the witness's answer."

Worked Example 1.1

During Defendant's trial for fraud, Witness testifies for the prosecution. On cross-examination, Defendant's attorney asks Witness: "Isn't it true that you submitted a false insurance claim three years ago?" Witness denies it. Can Defendant's attorney call an insurance adjuster to testify that Witness did, in fact, submit a false claim?

Answer: No. Submitting a false insurance claim is probative of untruthfulness. The attorney was permitted to ask Witness about it on cross-examination under FRE 608(b). However, once Witness denied the conduct, the attorney cannot introduce extrinsic evidence (the adjuster's testimony) to prove the specific instance. The attorney must take the witness's answer.

Cross-Examining a Character Witness

When a character witness testifies about another witness's (the "principal witness's") reputation for truthfulness or gives an opinion about that character (under FRE 608(a)), the character witness may be cross-examined about relevant specific instances of the principal witness's conduct. This tests the character witness's knowledge and the basis for their opinion or reputation testimony.

Impeachment by Evidence of Criminal Conviction (FRE 609)

A witness's character for truthfulness may also be attacked by introducing evidence that the witness has been convicted of a crime. FRE 609 provides specific rules based on the type of crime and other factors.

Key Term: Criminal Conviction (for impeachment) Evidence that a witness has previously been convicted of certain types of crimes, admissible under FRE 609 to attack the witness's character for truthfulness.

Crimes Involving Dishonesty or False Statement

For any crime (felony or misdemeanor) regardless of the punishment, evidence that a witness has been convicted is admissible, subject to the 10-year time limit (see below), if the elements of the crime required proving—or the witness admitted—a dishonest act or false statement. Examples include perjury, fraud, embezzlement, or false pretense. The court has no discretion to exclude these convictions under the FRE 403 balancing test (probative value vs. prejudicial effect), other than applying the time limit.

Felonies Not Involving Dishonesty

For crimes punishable by death or imprisonment for more than one year (felonies) that do not involve dishonesty or false statement, admissibility depends on a balancing test and the status of the witness:

  1. Witness is a Criminal Defendant: The conviction is admissible only if its probative value outweighs its prejudicial effect on the defendant. This standard favors exclusion.
  2. Witness is Not the Accused: The conviction is admissible, subject to the general balancing test of FRE 403 (probative value must not be substantially outweighed by the danger of unfair prejudice, etc.). This standard favors admission.

Time Limit (10-Year Rule)

Evidence of a conviction is not admissible if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later.

  • Exception: An older conviction may be admitted if (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives the adverse party reasonable written notice. This is a difficult standard to meet.

Other Limitations

  • Pardons: Evidence of a conviction is not admissible if the conviction has been the subject of a pardon, annulment, or certificate of rehabilitation based on a finding of innocence or rehabilitation (and the witness has not committed a subsequent felony).
  • Juvenile Adjudications: Generally inadmissible. Exception: May be admissible in a criminal case against a witness other than the defendant if necessary for a fair determination of guilt or innocence.
  • Pendency of Appeal: Does not make a conviction inadmissible, though evidence of the appeal is admissible.

Method of Proof (FRE 609)

Convictions under FRE 609 may be proved by eliciting an admission from the witness on cross-examination or by introducing extrinsic evidence (e.g., a certified copy of the judgment of conviction).

Worked Example 1.2

Plaintiff sues Defendant for injuries from a car accident. Witness testifies for Plaintiff. On cross-examination, Defendant's attorney seeks to introduce evidence that Witness was convicted of misdemeanor shoplifting (a crime involving dishonesty) 8 years ago. Is this admissible?

Answer: Yes. Shoplifting is generally considered a crime involving dishonesty. Under FRE 609(a)(2), evidence of any crime involving dishonesty or false statement is admissible to attack a witness's character for truthfulness, regardless of whether it was a felony or misdemeanor, subject only to the 10-year rule. Since the conviction was 8 years ago, it is admissible.

### Exam Warning

Be careful to distinguish between using specific acts on cross-examination under FRE 608(b) (where extrinsic evidence is barred) and using criminal convictions under FRE 609 (where extrinsic evidence is permitted). Also, note the different balancing tests applied under FRE 609 for felonies depending on whether the witness being impeached is the criminal defendant or another witness.

Key Point Checklist

This article has covered the following key knowledge points:

  • A witness's character for truthfulness is relevant to credibility and may be attacked or supported.
  • Reputation or opinion testimony is admissible to attack or support truthfulness (FRE 608(a)).
  • Evidence of truthful character (rehabilitation) is only admissible after character for truthfulness has been attacked.
  • Specific instances of conduct (not convictions) probative of truthfulness may be inquired into on cross-examination of the witness concerning their own character, but extrinsic evidence is inadmissible (FRE 608(b)).
  • A character witness testifying under FRE 608(a) may be cross-examined about specific instances of the principal witness's conduct.
  • Evidence of criminal convictions may be used for impeachment subject to FRE 609 rules.
  • Crimes involving dishonesty/false statement are generally admissible subject to the 10-year rule.
  • Other felonies are subject to balancing tests (probative value vs. prejudice), with a stricter test applied if the witness is the criminal defendant.
  • Convictions over 10 years old are generally inadmissible unless probative value substantially outweighs prejudice.
  • Pardons based on innocence/rehabilitation and juvenile adjudications generally bar admissibility.

Key Terms and Concepts

  • Character for Truthfulness
  • Specific Instances of Conduct (for impeachment)
  • Criminal Conviction (for impeachment)
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