Saturday, December 4, 2010
Designers Of The Arkansas: Court of Appeals Of Arkansas Finds Improper Bolstering Testimony Violated Rule 608(a)
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.
As the language and the recent opinion of the Court of Appeals of Arkansas in Stalter v. Gibson, 2010 Ark. App.801 (Ark.App. 2010), make clear, a witness' credibility can only be bolstered after it has been attacked.
In Gibson, Jay and Charlotte Stalter and Jimmy and Dianne Gibson were
at odds over the effect of a deed conveying 170 acres that contained no reservation of mineral rights. Appellants Jay and Charlotte Stalter, who were the sellers, asked the circuit court to set the deed aside or reform it to reflect their reservation of half of the mineral rights. Appellees Jimmy and Dianne Gibson, the buyers, claimed that the deed accurately memorialized the parties' agreement to convey all mineral rights to the buyers when the buyers paid off the property. Following a bench trial, the circuit court upheld the deed as written.
On appeal, the Stalters claimed that the circuit judge erred by allowing Circuit Judge David Laser (who was not the presiding judge) take the stand to testify that Mrs. Gibson had been his court reporter for eleven years and had a reputation in the community for being truthful, honest, and above reproach. The circuit judge did so over the Stalters' objection that character evidence was prohibited unless Mrs. Gibson's reputation for truthfulness had been attacked.
In agreeing with the Stalter's the Court of Appeals of Arkansas noted that Arkansas Rule of Evidence 608(a) only allows for a witness' credibility to be bolstered after it has been attacked and held that
In the present record, we discern no attack on Mrs. Gibson's character for truthfulness during the bench trial beyond the typical disagreement between litigants over the recollection and meaning of certain events. The mere fact that a witness is contradicted by other evidence does not constitute an attack on the witness's character for truthfulness.
In the end, though, the appellate court found harmless error and affirmed the circuit judge's order.