Presentation of evidence - Character for truthfulness

Learning Outcomes

This article explains how the MBE tests impeachment based on a witness’s character for truthfulness under the Federal Rules of Evidence and what analytical steps you must apply on exam questions. It clarifies the distinction between using character evidence substantively for propensity under FRE 404 and using it solely to evaluate credibility through impeachment. It explains when reputation and opinion evidence of truthfulness or untruthfulness is admissible under FRE 608(a), including which types of attacks open the door to rehabilitation and which do not. It details how specific instances of conduct may be used on cross-examination under FRE 608(b), emphasizing the good‑faith basis requirement and the absolute bar on extrinsic evidence when the acts are offered only to prove character for truthfulness. It analyzes impeachment by criminal convictions under FRE 609, including crimes involving dishonesty or false statement, other felonies, the special standard for criminal defendants, time limits, and old convictions. It also examines how hearsay declarants may be impeached and rehabilitated in the same manner as live witnesses, and highlights common MBE pitfalls involving overlapping uses of prior bad acts and convictions.

MBE Syllabus

For the MBE, you are required to understand how a witness’s character for truthfulness can be attacked or supported, with a focus on the following syllabus points:

• 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 and how it interacts with other impeachment methods (bias, contradiction, prior inconsistent statements, etc.).

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 because it affects the weight the fact-finder gives to the testimony. One central component of credibility is the witness’s character for truthfulness. Evidence rules draw a sharp line between using character to show that a person probably acted in a certain way (propensity) and using character to assess whether a witness is likely telling the truth.

Under FRE 404(a), character evidence is generally inadmissible to prove that a person acted in conformity with that character on a particular occasion. The law is wary of jurors convicting or finding liability merely because they think someone is a “bad person.” Impeachment is different. Once a person testifies, the rules allow limited use of character evidence to help the jury decide whether the testimony should be believed.

FRE 608 and FRE 609 supply the main tools for attacking and supporting a witness’s character for truthfulness:

• FRE 608(a): reputation or opinion testimony about a witness’s character for truthfulness or untruthfulness.
• FRE 608(b): cross-examination about specific instances of conduct that are probative of truthfulness or untruthfulness (with a strict ban on extrinsic proof of those acts).
• FRE 609: impeachment by evidence of certain criminal convictions.

Key Term: Character for Truthfulness
A person’s tendency to tell the truth or to lie. For evidentiary purposes, it refers specifically to credibility as a witness, not to moral character in general.

Key Term: Reputation Evidence
Testimony describing what a community (such as workplace, neighborhood, or church) generally says about a person’s truthfulness or untruthfulness.

Key Term: Opinion Evidence
Testimony in which a character witness states a personal opinion that another person is truthful or untruthful, based on familiarity with that person.

Key Term: Specific Instances of Conduct (for impeachment)
Particular acts in a witness’s past (not resulting in convictions used under FRE 609) that are probative of truthfulness or untruthfulness, such as lying on official documents or falsifying records.

Key Term: Extrinsic Evidence (for impeachment)
Any evidence other than the witness’s own answers on the stand—such as documents or testimony from other witnesses—offered to prove a fact relevant to impeachment.

Key Term: Criminal Conviction (for impeachment)
A judgment of guilt in a criminal case that may be used under FRE 609 to attack a witness’s character for truthfulness, subject to specific limitations.

Key Term: Crimes Involving Dishonesty or False Statement
Offenses whose statutory elements require proof of deceit, fraud, or false statements—such as perjury, fraud, embezzlement, forgery, or false pretenses—making them especially probative of truthfulness.

Key Term: Felony Conviction (for impeachment)
A conviction for a crime punishable by death or imprisonment for more than one year, which may be used to impeach under FRE 609(a)(1) subject to balancing tests.

Key Term: Rehabilitation (of a witness)
The process of restoring a witness’s credibility after it has been attacked, for example by introducing opinion or reputation evidence of truthful character or by using prior consistent statements.

Key Term: Hearsay Declarant (for impeachment)
The person who made an out-of-court statement that is admitted under a hearsay exception; that declarant can be impeached as though they were a live witness.

Two recurring MBE themes run through this topic:

• A distinction between methods of proof (reputation/opinion vs specific acts vs convictions).
• A distinction between when you may use them (attacking truthfulness vs supporting truthfulness after an attack).

Overview: Character Evidence vs Impeachment

Character evidence appears in several different guises on the MBE:

• As substantive proof of a trait (e.g., “the defendant is violent, so he probably started the fight”)—governed by FRE 404.
• As proof of habit (FRE 406).
• As proof of a witness’s character for truthfulness—governed by FRE 608 and 609.

For credibility questions, focus on FRE 608 and 609. Ask:

• Is the evidence offered to show that a party acted a certain way (propensity), or
• Is it offered only to affect how much the jury should believe a witness?

If it is the latter, impeachment rules apply.

MBE questions often blur these categories. For example, the prosecution may offer a defendant’s prior fraud conviction both:

• to show that the defendant is the sort of person who commits fraud (404(b) problem), and
• to impeach the defendant when he testifies (609 issue).

You must identify the permitted use (impeachment) and apply the correct rule.

Reputation or Opinion Evidence (FRE 608(a))

Under 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.

Only reputation and opinion testimony are allowed under this rule; specific acts do not come in on direct examination of a character witness.

Attacking Truthfulness

Any witness who takes the stand places their credibility in issue. Therefore, any party (including the party who called the witness) may attack that witness’s character for truthfulness.

Example attacks under FRE 608(a):

• Calling a character witness to testify: “In my opinion, Witness is not a truthful person.”
• Calling a character witness to testify: “Witness has a bad reputation in the community for truthfulness.”

Note:

• The character witness must have sufficient familiarity with the principal witness or that witness’s community to give a meaningful opinion or reputation assessment.
• The testimony must relate only to truthfulness or untruthfulness, not to other character traits (violence, generosity, sobriety, etc.).

Supporting Truthfulness (Rehabilitation)

Evidence of a witness’s truthful character is more restricted. It is admissible only after an attack on the witness’s character for truthfulness.

This “opening the door” requirement is frequently tested:

• Mere contradiction of the witness on facts (e.g., calling other witnesses who tell a different version of events) does not count as an attack on character for truthfulness.
• Showing bias, interest, or sensory defects also does not, by itself, open the door to reputation/opinion evidence of truthfulness.
• Using a prior conviction under FRE 609 or calling a character witness to say the witness is untruthful does attack the witness’s character for truthfulness and opens the door.

Once character for truthfulness has been attacked, the proponent may rehabilitate with:

• Reputation testimony: “The witness has a good reputation for truthfulness.”
• Opinion testimony: “In my opinion, the witness is an honest person.”

Until there is a qualifying attack, such bolstering is impermissible.

What Counts as an “Attack” on Truthfulness

Courts and examiners treat the following as attacks on character for truthfulness:

• Opinion or reputation evidence that the witness is untruthful.
• Cross-examination about specific acts of dishonesty (FRE 608(b)).
• Impeachment with convictions admissible under FRE 609.
• Prior inconsistent statements, when presented in a way that implies the witness lies rather than simply misremembers.

By contrast, the following generally do not open the door to character-for-truthfulness support:

• Evidence of bias (e.g., the witness is a relative or paid by a party).
• Evidence of poor perception (e.g., bad eyesight, intoxication).
• Evidence contradicting the witness’s version of events without insinuating dishonesty.

This distinction matters for rehabilitation questions.

Method and Scope on Direct (FRE 608(a))

On direct examination of a character witness under FRE 608(a):

• The proponent is limited to reputation and opinion.
• The proponent may not ask the character witness about specific instances of the principal witness’s conduct to prove that character.

The character witness’s testimony must remain general:

• “He is known as honest.”
• “In my opinion, she is untruthful.”

The details of individual lies or acts of dishonesty must instead be explored—if at all—on cross-examination under FRE 608(b).

Cross-Examining a Character Witness

When a character witness testifies about another witness’s truthful or untruthful character, opposing counsel may cross-examine the character witness about specific instances of the principal witness’s conduct that are relevant to truthfulness.

This serves two purposes:

• It tests the character witness’s knowledge of the principal witness’s reputation or conduct.
• It can undermine the weight of their opinion (“You call him honest even though he did X?”).

Example:

• Direct: Defense calls Neighbor to say, “In my opinion, the defendant is an honest person.”
• Cross: Prosecutor asks, “Did you know that the defendant failed to report income on his tax return last year?”

Even though specific acts are being mentioned, they are used:

• Not as substantive proof of the defendant’s conduct (no FRE 404(b) use here), but
• To test the basis of the character witness’s opinion.

Under FRE 608(b), the cross-examiner must:

• Have a good-faith basis for the inquiry (some factual support).
• Accept the character witness’s answer; extrinsic evidence cannot be introduced to prove the specific acts solely for impeachment of truthfulness.

Specific Instances of Conduct (FRE 608(b))

FRE 608(b) addresses non‑conviction specific acts that are probative of truthfulness or untruthfulness and permits inquiry on cross-examination only.

Scope of Permissible Inquiry

On cross-examination of:

• The witness whose credibility is being attacked, or
• A character witness testifying about another witness’s truthful/untruthful character,

the court may allow questions about specific instances of conduct if they are probative of truthfulness or untruthfulness.

Examples of proper topics:

• Lying on a job application.
• Submitting a false insurance claim.
• Falsifying business records.
• Filing a false tax return.
• Using a bogus degree on a résumé.

Improper topics under 608(b) include specific acts that do not bear on truthfulness, such as:

• Drug use or drug possession (without deceit).
• Acts of violence (assault, battery) that do not involve dishonesty.
• Sexual misconduct that does not involve deceit.

The judge retains discretion under FRE 403 to exclude such questions if the probative value is substantially outweighed by dangers such as unfair prejudice, confusion, or harassment.

Extrinsic Evidence Prohibited

A key limitation: if the witness denies the act or refuses to answer, the cross-examiner must take the witness’s answer. Extrinsic evidence is not admissible to prove the specific act for the purpose of attacking or supporting the witness’s character for truthfulness.

This means:

• No additional witnesses to prove the act occurred.
• No documents (e.g., disciplinary records) solely to prove the act.

The examiner must live with whatever the witness says.

Exam Tip: Distinguish 608(b) specific acts (no extrinsic proof) from FRE 609 convictions (extrinsic proof allowed). The MBE often tests this difference.

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 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:
Submitting a false insurance claim is highly 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, FRE 608(b) barred extrinsic evidence offered solely to prove that specific instance of conduct. The attorney must accept Witness’s answer and may not call the adjuster to prove the act.

Good-Faith Basis Requirement

The lawyer must have a reasonable, good-faith basis for asking about a specific act. Fishing expeditions—hoping the witness will admit something damaging without any evidentiary support—are improper and may be limited by the court.

Relationship to Other Impeachment Methods

The bar on extrinsic evidence in FRE 608(b) applies only when the specific act is offered to attack or support character for truthfulness. If the same act is relevant for another impeachment purpose—such as bias or contradiction on a material point—extrinsic evidence may be allowed under other rules.

Example:

• Defense witness testifies: “I have never met the defendant before today.”
• Opposing party offers a prior civil complaint in which they sued each other. That document contradicts an important fact (relationship between them) and may be proved with extrinsic evidence, not as a character-for-truthfulness specific act, but as contradiction.

Impeachment by Evidence of Criminal Conviction (FRE 609)

FRE 609 is a separate route to attack a witness’s credibility through prior criminal convictions. Unlike 608(b) specific acts, convictions:

• May be proved by extrinsic evidence (e.g., a certified copy of the judgment).
• Are subject to specific admissibility standards depending on the nature of the crime and the witness’s status.

General Structure

Ask three questions:

1. What kind of crime is it?

   • Crime involving dishonesty or false statement (any level).
   • Other felony (punishable by death or more than one year’s imprisonment).
   • Misdemeanor not involving dishonesty.

2. How old is the conviction?

   • Within 10 years of conviction or release (whichever is later).
   • More than 10 years old.

3. Who is the witness?

   • Criminal defendant.
   • Other witness (party or non-party).

Crimes Involving Dishonesty or False Statement (FRE 609(a)(2))

For any crime, whether a felony or misdemeanor, if an element of the offense required proof (or admission) of a dishonest act or false statement, the conviction is admissible to impeach any witness, subject mainly to the 10‑year rule.

Examples:

• Perjury.
• Fraud (mail, wire, bank, securities).
• Embezzlement.
• Forgery.
• False pretenses, false statements, or similar statutory offenses.
• Crimes explicitly defined as involving deceit (e.g., some forms of shoplifting where concealment or deception is an element).

For these crimes:

• Courts treat them as especially probative of veracity.
• The judge has very limited discretion to exclude them for unfair prejudice, apart from the strict old-conviction rule.

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 statutory theft offense defined in that jurisdiction as taking property by deception) 8 years ago. Is this admissible?

Answer:
Yes. Shoplifting is treated here as a crime whose elements include deception, so it qualifies as a crime involving dishonesty or false statement under FRE 609(a)(2). Because the conviction is less than 10 years old, it must be admitted to impeach Witness’s credibility.

Felonies Not Involving Dishonesty (FRE 609(a)(1))

For other felonies—that is, crimes punishable by more than one year in prison that do not require proof of deceit—the admissibility turns on the witness’s role:

• If the witness is the criminal defendant:
  The conviction is admissible only if its probative value in evaluating credibility outweighs its prejudicial effect on the defendant.

  • This is a “reverse 403” standard—tilted toward exclusion to protect the accused.

• If the witness is anyone else:
  The conviction is admissible unless its probative value is substantially outweighed by the risk of unfair prejudice under standard FRE 403.

  • This standard favors admission.

Misdemeanors that are not crimes of dishonesty are not admissible under FRE 609.

Worked Example 1.3

In a burglary trial, Defendant testifies in his own defense. Five years ago, Defendant was convicted of felony burglary (not defined to require deceit). The prosecution offers the prior burglary conviction to impeach Defendant. The court finds that the probative value and prejudicial effect are roughly equal. Should the court admit the conviction?

Answer:
No. Because the witness is the criminal defendant and the felony is not a crime of dishonesty, FRE 609(a)(1)(B) allows impeachment only if probative value outweighs prejudicial effect. If they are equal, the standard is not satisfied, and the conviction must be excluded.

Compare this to impeachment of a non‑defendant witness with the same conviction: a finding that probative value and prejudice are equal would generally lead to admission under the standard 403 test.

Time Limit: Old Convictions (FRE 609(b))

A conviction is considered “old” if more than 10 years have passed since the later of:

• the date of conviction, or
• the date of release from confinement for that conviction.

Old convictions are presumptively inadmissible. They may be admitted only if:

• The probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect, and
• The proponent gives the adverse party reasonable written notice before trial.

This is a stringent standard that is rarely met. On the MBE, a conviction more than 10 years old is usually out.

Worked Example 1.4

A key prosecution witness in a fraud trial was convicted of perjury 14 years ago and released from confinement 12 years ago. The prosecution seeks to impeach the witness with that conviction, arguing that perjury is highly probative of truthfulness. The defense objects. Should the conviction be admitted?

Answer:
Probably not. The perjury conviction is more than 10 years old, making it subject to FRE 609(b). The prosecution would have to show that the conviction’s probative value substantially outweighs prejudicial effect and that reasonable advance written notice was given. Absent unusual circumstances, courts are reluctant to admit such old convictions, especially when the witness is not the accused.

Other Limitations

FRE 609 includes several additional constraints:

• Pardons, annulments, rehabilitation:
  A conviction cannot be used to impeach if (1) the conviction was pardoned or annulled, or the person received a certificate of rehabilitation, and (2) the pardon or similar action was based on a finding of innocence or rehabilitation, and the witness has not been later convicted of a serious crime.

• Juvenile adjudications:
  Juvenile adjudications are generally inadmissible. An exception allows use in a criminal case: a juvenile adjudication may be used to impeach a witness other than the accused if it is necessary for a fair determination of guilt or innocence.

• Pendency of appeal:
  The fact that a conviction is on appeal does not bar its use for impeachment. Evidence of the appeal is itself admissible.

Method of Proof

Unlike specific acts under FRE 608(b), convictions under FRE 609:

• May be proved on cross-examination by asking the witness about the conviction, and/or
• May be proved with extrinsic evidence, such as a certified copy of the judgment.

This is a key doctrinal difference and frequent exam trap.

When May Truthful Character Be Shown? Rehabilitation

Rehabilitation is the evidentiary “counterpunch” after impeachment. When a witness’s character for truthfulness has been attacked, the proponent may:

• Call character witnesses to testify, under FRE 608(a), that the witness has a good reputation for truthfulness or that they hold a positive opinion of the witness’s truthfulness.

Additionally, rehabilitation may proceed by:

• Allowing the witness to explain or deny the impeaching facts (e.g., explaining a prior inconsistent statement).
• Introducing a prior consistent statement if the witness has been accused of recent fabrication or improper motive and the prior statement pre‑dates the alleged motive (FRE 801(d)(1)(B)).

But character-based rehabilitation (reputation/opinion of truthful character) is allowed under FRE 608(a) only if there has been an attack on character for truthfulness.

Worked Example 1.5

In a personal injury trial, Witness testifies for Plaintiff. On cross-examination, Defendant’s lawyer attacks Witness’s credibility by introducing a two-year-old conviction for felony theft, admissible under FRE 609. Plaintiff now wants to call Witness’s employer to say: “In my opinion, Witness is an honest person.” Is this permitted?

Answer:
Yes. Impeachment with a conviction under FRE 609 is an attack on Witness’s character for truthfulness. Under FRE 608(a), this opens the door to reputation or opinion testimony supporting Witness’s truthful character, such as the employer’s positive opinion.

By contrast, if Witness had been impeached only by showing bias (e.g., Witness is Plaintiff’s spouse) or by simple contradiction, such character-based rehabilitation would not be allowed.

Special Issues: Hearsay Declarants and Truthfulness

When an out-of-court statement is admitted under a hearsay exception, the declarant functions like a witness for credibility purposes.

Under FRE 806:

• A hearsay declarant may be impeached by any evidence that would be admissible if the declarant had testified, including evidence of character for untruthfulness under FRE 608 and 609.
• If the declarant’s character for truthfulness is attacked, the proponent may rehabilitate in the same manner.

Example:

• A dying declaration is admitted at trial. The opponent offers evidence that the declarant had a reputation for untruthfulness. The proponent may respond with opinion or reputation evidence of the declarant’s truthful character.

This principle ensures that credibility of hearsay statements can be tested with the same tools used for live witnesses.

Exam Warning

Be careful to distinguish:

• Using specific acts on cross-examination under FRE 608(b) (no extrinsic evidence to prove them), from
• Using criminal convictions under FRE 609 (extrinsic evidence allowed).

Also be sure to apply the correct balancing test under FRE 609:

• For felonies when the witness is the criminal defendant: probative value must outweigh prejudice.
• For other witnesses: exclude only if probative value is substantially outweighed by unfair prejudice under FRE 403.
• For crimes of dishonesty or false statement: admit (subject mainly to the 10‑year rule).

Finally, remember that evidence of truthful character is never available to pre‑bolster a witness; it becomes admissible only after a genuine attack on character for truthfulness.

Key Point Checklist

This article has covered the following key knowledge points:

• Character for truthfulness relates specifically to witness credibility, not general moral worth.
• Under FRE 608(a), a witness’s character for truthfulness or untruthfulness may be proved by reputation or opinion testimony.
• Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked, not merely contradicted.
• On direct examination of a character witness, specific instances of conduct are not admissible to prove truthfulness or untruthfulness.
• Under FRE 608(b), specific instances of conduct probative of truthfulness may be inquired into only on cross-examination of the witness or of a character witness.
• Extrinsic evidence is not admissible to prove specific instances of conduct when offered solely to attack or support character for truthfulness.
• A character witness who testifies about another witness’s truthful or untruthful character may be cross-examined about specific instances of the principal witness’s conduct.
• FRE 609 allows impeachment by criminal convictions, with different rules for:
  • Crimes involving dishonesty or false statement (broadly admissible).
  • Other felonies (subject to balancing tests).
  • Misdemeanors not involving dishonesty (generally inadmissible).
• Crimes involving dishonesty or false statement are admissible to impeach any witness, subject primarily to the 10‑year time limit.
• For felonies not involving dishonesty, impeachment of a criminal defendant requires probative value to outweigh prejudice; impeachment of other witnesses uses standard FRE 403 balancing.
• Convictions more than 10 years old are generally inadmissible unless probative value substantially outweighs prejudice and advance written notice is given.
• Pardons based on innocence or rehabilitation generally bar use of the conviction for impeachment if no subsequent serious crimes have occurred; juvenile adjudications are usually inadmissible.
• Convictions under FRE 609 may be proved through extrinsic evidence (e.g., certified judgments), unlike specific acts under FRE 608(b).
• When a hearsay declarant’s statement is admitted, the declarant can be impeached—and rehabilitated—just like a live witness, including by character-for-truthfulness evidence.

Key Terms and Concepts

• Character for Truthfulness
• Reputation Evidence
• Opinion Evidence
• Specific Instances of Conduct (for impeachment)
• Extrinsic Evidence (for impeachment)
• Criminal Conviction (for impeachment)
• Crimes Involving Dishonesty or False Statement
• Felony Conviction (for impeachment)
• Rehabilitation (of a witness)
• Hearsay Declarant (for impeachment)