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Univ. of South Carolina School of Law

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Saturday, August 6, 2011

Tell Me Lies; NJ Case Reveals Differences Between New Jersey & Federal Rule Of Evidence 608(b)

Federal 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.

Meanwhile, New Jersey 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, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that 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. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.

So, Federal Rule of Evidence 608(a) and New Jersey Rule of Evidence 608(a) are pretty similar. But, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in Department of Children and Families, Div. of Youth and Family Services v. F.D., 2011 WL 3274010 (N.J.Super.A.D. 2011), makes clear, Federal Rule of Evidence 608(b) and New Jersey Rule of Evidence 608(b) are quite different.

In F.D., the Department of Children and Families (DCF), Division of Youth and Family Services (DYFS) issued a final administrative decision that: 1) affirmed an administrative law judge's (ALJ) initial decision that F.D. sexually abused his daughter, A.M.D.; and 2) placed his name on the central registry. Thereafter, F.D. appealed, claiming that the ALJ erred in deeming proposed testimony by Tina Brown inadmissible. After this ruling, defense counsel made the following proffer:

Tina Brown has personal, firsthand knowledge of this family. After the parties separated or divorced, [A.M.D.] made allegations of physical abuse against her—by her father. Tina Brown was the investigator into the allegations, and it is my understanding that Tina Brown is going to testify that she took the information ... conducted her investigation, and, during the course of her investigation, that the child said that the allegations were not true and that her mother told her to say the things.

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.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

For years, however, New Jersey did not have a New Jersey Rule of Evidence 608(b). In State v. Guenther, 181 N.J. 129 (2004), however, the Supreme Court of New Jersey "created a narrow exception to N.J.R.E. 608...to permit a defendant to attack a victim's credibility by presenting evidence of a prior false accusation." This exception was eventually codified in New Jersey Rule of Evidence 608(b), which now provides that

The credibility of a witness in a criminal case may be attacked by evidence that the witness made aprior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

Obviously, based upon this language, the first problem for F.D. was that his case was not a criminal case, meaning that Rule 608(b) was inapplicable. Moreover, the court held that

Even by analogy, the narrow exception provided by N.J.R.E. 608(b) to defendants in criminal cases in inapposite to the facts in this case. F.D. claimed Brown would testify that A.M.D. made a prior false accusation of physical abuse, which was investigated and found to be unsubstantiated by DYFS, and A.M.D. told the DYFS worker that N.D. told her to make the false accusation. The alleged prior false accusation was, in short, dissimilar to the facts at issue before the ALJ.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/608b-department-of-children-and-families-div-of-youth-and-family-services-v-fdnot-reported-in-a3d-2011-wl-3274010n.html

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