Friday, March 11, 2011
Federal Rule of Evidence 608(b) provides in relevant part 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.
As the recent opinion of the Supreme Court of Florida in Pantoja v. State, 2011 WL 722374 (Fla. 2011), makes clear, however, Florida does not have a counterpart to Federal Rule of Evidence 608(b) and only specific instances of (mis)conduct leading to convictions can be used to impeach witnesses.
In Pantoja, Juan Pantoja was sentenced to life imprisonment after a jury convicted him of sexual battery on a child under twelve years of age by a defendant less than eighteen years of age and lewd or lascivious molestation by a defendant eighteen years of age or older. Pantoja thereafter appealed, claiming, inter alia, that the trial court erred by failing to allow him to impeach the alleged victim with evidence that she made a prior false sexual assault allegation against her uncle.
The Supreme Court of Florida disagreed, finding that Florida has no counterpart to Federal Rule of Evidence 608(b). Instead,
-Section 90.608, Fla. Stat. sets forth who may impeach witnesses;
-Section 90.609, Fla. Stat. provides that a witness may be impeached through evidence of his reputation for untruthfulness; and
-Section 90.610, Fla. Stat. provides that a witness may be impeached through evidence of certain convictions.
According to he court, because the alleged victim's prior false allegations did not lead to a conviction, the court found that they were inadmissible as impeachment evidence. As the court noted,
The Florida Legislature's intent regarding section 90.610 is clear. While Federal Rule of Evidence 608(b) permits character impeachment through prior misconduct without a criminal conviction requirement, Florida's Legislature adopted our evidence code without this language....Professor Charles Ehrhardt distinguished section 90.610 from Federal Rule of Evidence 608(b):
Occasionally decisions ignore the limitation and permit impeachment with prior acts of misconduct of a witness when they involve prior false accusations of a crime by the witness....The drafters of the Code specifically intended not to adopt provision similar to Federal Rule 608(b)because it did not reflect the existing Florida law and because they felt the possibility for abuse of this type of evidence was great.