Monday, October 5, 2009
In relevant part, Federal Rule of Evidence 608(b) provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Therefore, if the prosecution impeaches a defendant, defense counsel might respond by calling a witness to testify concerning the defendant's reputation for honesty. The prosecution could thereafter ask the witness whether he had heard that the defendant committed some specific act of dishonesty but could not prove that act through extrinsic evidence. Texas Rule of Evidence 608(b) is more restrictive. It provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
As the recent opinion of teh Court of Appeals of Texas, Houston, in State v. Moreno, 2009 WL 3126607 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, this restriction does not apply specific act evidence tends to establish an impairment or disability affecting a witness' credibility.
In Moreno, Bobby Lee Moreno was convicted of two counts of aggravated sexual assault based upon acts that he allegedly committed against his then 12 year-old half-sister. After reporting this alleged abuse, the half-sister, the complainant, was admitted to the Devereux Treatment Center. A psychiatric assessment on the day of admission reported the following history:
[Complainant] is a 12-year-old white female brought in by her mother due to reports of her revealing that she felt that she “messed up her life” and “didn't want to deal with it anymore.” She began crying and screaming at home. She reportedly was upset about recent sexual abuse and not remembering what really happened versus what she thought may have happened. [Complainant] is very tearful during the interview and per staff, she has been crying frequently during the day. She rapidly recounts feelings that her mother had put a pillow over her face to keep her from crying even though she is not sure this actually happened. She also is scared that she may endanger her current living environment after telling people about this incident and another incident about her stepfather hitting her. She is unsure but ruminates about feelings that she has done something sexually inappropriate with her 5-year-old sibling “but I really didn't.” [Complainant] usually reports feeling happy but has been tearful and crying for the last four days. She admits to suicidal ideation stating “I would jab a pencil in my arm.” She admits to sometimes getting mad and as a result begins “yelling and screaming.” She admits to engaging in sexual play with a cousin from age 8 to recently. CPS reportedly has been involved in the past.
When the complainant's mother and stepfather were interviewed about the alleged physical abuse, they said that since reporting the sexual assault by appellee the complainant could not “distinguish between what is imagined and what is reality.” The complainant thought she had been abused by people other than her half brother. She also admitted that she thought she had inappropriately touched others including her five-year-old brother and a cousin. The reports state that “Each of these persons are shocked and report no such events.” The therapist reported that the complainant's grasp of reality and her imagination are “very much confused in her mind.” Another entry read, “Patient's larger issue is with talking about doing bad things she has not even done. Therapist now feels this may be partly due to confusion with reality. More due to the attention patient gets from all the talk.” The therapist also recognized that the complainant had false fantasies.
Moreno was rebuffed by the trial judge in his attempt to cross-examine the complainant regarding these records during the guilt phase of his trial. After he was convicted, he appealed, and the Court of Appeals of Texas agreed with him, finding that Moreno was not attempting to introduce the records for the purpose of attacking the complainant's credibility. Instead, according to the court, he was attempting to introduce the records to establish an impairment or disability affecting the complainant's credibility.
Now, one could certainly argue that there is no difference between the two, but I think that I see the distinction. A litigant cannot not present specific act evidence to prove that a witness is a liar. Thus, defense counsel could not ask an eyewitness whether he had cheated on his taxes to prove that his testimony should not be trusted. But, defense counsel could ask the eyewitness whether he is nearsighted and was wearing glasses at the time of the crime he witnessed. In this case, defense counsel would be using the evidence to establish an impairement or disability affecting the witness' credibility and would not be making a direct attack on the witness' credibility.