EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 1, 2010

The (Un)Truth of the Matter: Court Of Appeals Of Texas Ostensibly Broadly Defines "Untruthful" Under Rule 608

Like its federal counterpartTexas Rule of Evidence 608(a) provides that:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness; and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

My question is: How broadly do we construe the words truthfulness and untruthfulness? Obviously, if defense counsel calls a witness to testify that, in his opinion, a witness for the prosecution is a liar, defense counsel has labeled the witness untruthful, opening the door for the prosecution to present evidence that the witness is truthful. But let's say that you have a child witness for the prosecution. And let's say that defense counsel tells the jury during opening statements that children generally have bad memories. Let's say that he tells them that children are subject to being coached. Let's say that he tells them that children fantasize about things that didn't happen. In that case, has defense counsel labeled the child witness untruthful, opening the door for he prosecution to present evidence that the witness is truthful? That was the issue facing the Court of Appeals of Texas, Texarkana, in its recent opinion in Alberts v. State, 2009 WL 4724362 (Tex.App.-Texarkana 2009).

The facts in Alberts were basically as listed above, with Michael Lee Alberts, Sr. being the defendant on trial for two counts of indecency by contact with D.G., a child, and one count of indecency by exposure to D.G., and D.G. being the child witness for the prosecution

During opening statements, counsel for Alberts made the following comments: "[T]here are adults that are present when all this supposedly took place...that will say it never happened. It never happened," "You're going to find out that sometimes people with-children's minds don't have the memory that you and I have," and "Children are subject to not recalling it as it really happened. They are subject to be coached." During cross-examination, Peavy was asked, "what percentage of those children interviewed do not tell it like it is," "[h]ow often do children fantasize about things that did or didn't happen," and "how many times do interviewers such as yourself come in and coach the children into leading them with questions."

Thereafter, during trial, the court permitted D.G.'s mother to testify about how her son is honest and trustworthy. After Alberts was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his attorney did not object to this testimony despite it being inadmissible under Texas Rule of Evidence 608(a)(2) because he did not attack D.G.'s truthfulness. The Court of Appeals disagreed, noting that

The test for determining whether D.G.'s credibility was attacked, such that reputation testimony was proper is "whether a reasonable juror would believe that a witness's character for truthfulness has been attacked by ... evidence from other witnesses, or statements of counsel (e.g.[,] during voir dire or opening statements."...Despite the language relating to memory, it appears that the defensive strategy was to suggest that D.G. was coached by adults to fabricate and lie about an incident that did not occur. In this case, a reasonable juror might interpret counsel's questioning and comments as attacks on D.G.'s credibility. Because the record is silent, we may presume this logic drove counsel's failure to object. Therefore, we conclude counsel was not deficient in failing to object to the rebuttal testimony regarding D.G.'s reputation for truthfulness, as well as testimony specifically rebutting the defensive theory that D.G. was coached.

I think that I agree with the court, but I am not sure. I guess that it basically comes down to how you define "untruthful." If you simply define it as "not containing or telling the truth," it seems clear that defense counsel did label D.G. as untruthful because he was telling the jury that what D.G. had said did not contain the truth. But if you find that an "untruthful" person must be "deceitful" or "deceptive," it seems clear that defense counsel did not label D.G. as untruthful. Defense counsel claimed that D.G. might have been mistaken and that there might have been deceitful people coaching him, but I don't think that defense counsel was saying that D.G. himself was being deceitful or deceptive. 



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When you consider that the rebuttal evidence is only triggered by evidence of the witness's untruthful "character" (after all, we are in rule 608(a)), the court should have asked whether the defense attacked the witnesses character for truth-telling.

I don't think it quite did. Certainly, suggesting that a witness is mistaken due to poor memory is not an attack on character for truthfulness. And, suggesting that a child witness was coached is not necessarily an attack on the witness's character, albeit one could say that the witness's agreeing to accept the coaching and lie under oath is evidence of bad character for truthfulness. I don't think so. That would mean that any attack on the truthfulness of a witness's testimony, say, by bias, interest, or "undue influence" (as here) would open the door to bad character evidence. I don't think the door is so easily opened, especially when dealing with rebuttal evidence and character evidence -- both unfavored types of evidence under the rules.

However, since this was an IEC case and a close call, the ultimate outcome was probably okay, but the court should have said, error not to have objected, but not IAC.


Posted by: Fred | Jan 4, 2010 11:05:20 AM

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