EvidenceProf Blog

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

Sunday, March 6, 2011

I Want The Truth: 8th Circuit Opinion Notes That Rule 608(b) Only Covers Instances Of (Un)Trustworthiness

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.

As the text of this Rule and the recent opinion of the Eighth Circuit in United States v. Tate, 2011 WL 692013 (8th Cir. 2011), make clear, Rule 608(b)(1) only covers specific instances of (un)truthfulness, and (2) does not allow for the admission of extrinsic evidence.

In Tate, Donald Ray Tate was convicted of being a felon in possession of a firearm. One of the witness who testified for the prosecution at trial was Officer Adam Siegfried. The prosecution, however, failed to inform Tate that Officer Siegfried was involved in an altercation in which he allegedly punched and kicked a bartender while off-duty and attending a police department SPPD holiday party.

After he was convicted, Tate appealed claiming, inter alia

that, had the government disclosed before trial the allegedly suppressed evidence, at trial Tate would have been entitled under Fed.R.Evid, 608(b) to ask Officer Siegfried on cross-examination "whether an allegation had been made against him; inquire into the nature of the allegation; who made it and when; and the current status and details of any investigation" because "[t]he fact that the Minneapolis City Attorney's Office ultimately brought charges...confirms that the State did not believe Officer Siegfried" when he denied punching and kicking the bartender.

But according to the Eighth Circuit, "Tate misunderst[ood] Rule 608(b)" because "[t]he fact Officer Siegfried may have assaulted the bartender is not probative of Officer Siegfried's character for truthfulness...." Moreover, the court concluded that
Even if we assume Rule 608(b) would have permitted Tate to ask Officer Siegfried on cross-examination whether Officer Siegfried lied when he stated he did not punch and kick the bartender, Officer Siegfried more than likely would have denied the accusation. Officer Siegfried had not yet been charged and had consistently denied assaulting anyone. Unable to introduce extrinsic evidence to rebut Officer Siegfried's denial, Tate's inquiry necessarily would have ended



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