EvidenceProf Blog

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

Saturday, August 11, 2012

Walking Contradiction: 2nd Circuit Finds Rule 608(b) Doesn't Apply To Contradiction By Other Evidence

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

As the recent opinion of the Second Circuit in United States v. Ingram, 2012 WL 3055791 (2nd Cir. 2012), makes clear, however, Rule 608(b)'s limitation on the admissibility of extrinsic evidence doesn't apply when a party is contradicting a statement made by a witness at trial.

In Ingram, Noemi Dodakian, a/k/a Emi Dodakian and others were convicted of two counts of conspiracy to commit wire fraud. After she was convicted, Dodakian appealed, claiming, inter alia, that the district court erred by allowing the prosecution to introduce extrinsic evidence of her application for National Association of Securities Dealers registration. Specifically, Dodakian claimed at trial that she was not a "financial person." Thereafter,

On cross-examination, the Government challenged Dodakian's assertion that she was not a "financial person" by eliciting testimony that she had previously sold financial products, had passed an examination offered by the National Association of Securities Dealers ("NASD") and was registered with the NASD, and had taken examinations regarding mutual funds and state securities regulations....Over Dodakian's objection, the District Court admitted her application for NASD registration....Dodakian acknowledged that she had previously described herself on an employment application as having three years of experience with a financial services company, and as having worked for eleven years as a self-employed entrepreneur in health and financial services "opportunities."

On appeal, Dodakian claimed that the admission of her application violated Rule 608(b)'s limitation on the admissibility of extrinsic evidence. The Second Circuit disagreed, finding that

This claim has no merit because the license application was admitted to impeach Dodakian by contradiction, whereas Rule 608(b) addresses extrinsic evidence admitted to impeach by demonstrating character for untruthfulness....Admission of the application did not even implicate, let alone violate, Rule 608(b) because the application had no bearing on Dodakian's character for untruthfulness.



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