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Univ. of South Carolina School of Law

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Tuesday, February 5, 2008

Evidence And Ethics 7: Gerald Shargel's Federal Rule 608(b): Gateway to the Minefield of Witness Preparation

The contribution of Gerald L. Shargel, a criminal defense attorney and Practitioner-in-Residence at Brooklyn Law School, to the Evidence and Ethics Symposium is Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation.  Under Federal Rule of Evidence 608(b), a witness can be questioned on cross-examination about specific instances of truthfulness/untruthfulness of the witness or another witness, but these specific instances of conduct cannot be proven by extrinsic evidence.  In other words, a prosecutor could ask a defense witness whether he ever cheated on his taxes. If the witness admits to such cheating, the jury can take his admission as evdience that the act occurred, but no more evidence on the issue is allowedl if the witness denies cheating, the prosecutor cannot introduce, inter alia, the witness' tax returns or the testimony of another witness to prove the cheating.

As Shargel notes, this Rule raises the difficult ethical question of whether and when attorneys should reveal to their clients the contents of Rule 608(b) and state counterparts.  According to the "zealous advocates" school, informing a client about this rule is useful if not necessary for effective representation by forwarding goals such as witness preparation and client participation and autonomy.  Meanwhile, according to the "truth trumps" school, informing a client about the rule risks tempting him to commit perjury and undermining the search for truth and justice in general.  In Part I, Shargel considers these and other points and ultimately decides that (a) an attorney should tell his client that Rule 608(b) bars extrinsic evidence of collateral bad acts even though this might tempt him to commit perjury, and (b) an attorney should tell the client about Rule 608(b) before asking the client about his past.

Shargel acknowledges, however, that this course of action can easily lead to client perjury, and in Part II, he discusses a variety of techniques that attorneys can use when their clients plan to use Rule 608(b) to commit perjury, ranging from dissuasion and withdrawal to having clients testify in narrative form.

Finally, in Part III, Shargel reviews a variety of reforms that have been proposed to Rule 608(b).  He then endorses a proposal under which Rule 608(b) would still prevent extrinsic evidence concerning specific instances of truthfulness/untruthfulness when a witness denies the instance, but under which extrinsic evidence would be allowed when a witness admits the instance.  Thus, in the tax fraud example from above, if a defense witness denied committing tax fraud, the prosecutor still could not prove his tax fraud through extrinsic evidence.  But, if the defense witness admitted that he committed tax fraud, the prosecutor could then introduce extrinsic evidence to further prove that the tax fraud occurred.

Shargel acknowledges that such a change places the "honest liar" in a worse position than the "lying liar."  But, he also notes that the purpose of Rule 608(b)'s extrinsic evidence ban is to prevent "trials within trials," wasting the court's resources and confusing the issues. When a witness, however, admits to an act such as tax fraud, the concern about having a "trial within a trial" is no loner exists.  Furthermore, Shargel rejects amending Rule 608(b) to allow for extrinsic evdience against "lying liars," noting that Rule 608(b) was never intended to entrap such witnesses. 

I'm not sure that I agree with all of Shargel's conclusions, but they are well argued and have given me reason to research these issed more thoroughly.

-CM   

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