Tuesday, May 21, 2013
Talk About the Life in Massachusetts: Supreme Judicial Court of MA Does Not Adopt Federal Rule of Evidence 608(b)
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.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
The vast majority of states have state rules of evidence that exactly or closely mirror the Federal Rules of Evidence. Massachusetts, however, is not one of those states. So, what did that mean for the defendant in Commonwealth v. Almonte, 2013 WL 2128336 (Mass. 2013)?
In Almonte, Christian Almonte was convicted of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of larceny of a motor vehicle. After he was convicted, Almonte appealed, claiming, inter alia, that the trial court erred by improperly preventing from inquiring, during his cross-examination of a witness for the prosecution, into the facts of three prior convictions bearing on the witness' veracity.
Strangely, neither Almonte nor the Supreme Judicial Court of Massachusetts focused upon Federal Rule of Evidence 609, which deals with the admissibility of evidence of prior convictions when used to impeach a witness. Instead, Almonte argued
urge[d] th[e]d court to adopt rule 608(b) of the Federal Rules of Evidence, a rule that permits the scope of permissible cross-examination to include evidence and inquiry relating to the facts of specific instances of prior misconduct on the part of a witness, for the purpose of attacking or supporting the witness's character for truthfulness.
The reason that Almonte had to ask the court to adopt this Rule is because
The general rule in the Commonwealth is that a party may impeach a witness by attacking the witness's character for truthfulness, but only through general reputation evidence, or evidence of a witness's prior criminal convictions in conformity with the requirements of G.L. c. 233, § 21....Individual bad acts of untruthfulness are for the most part inadmissible to impeach a witness....By contrast, under the Fed.R.Evid. 608(b), a party on cross-examination of a witness may inquire into the details of prior instances of misconduct if probative of the witness's character for veracity.
The court, however, declined the invitation, concluding:
We decline to accept the defendant's invitation to use his case as a vehicle to abandon our long-standing limitation on the type of admissible evidence of untruthful character and to adopt in substance the rule set out in Fed.R.Evid. 608(b). Although there may be other reasons to decline to adopt the rule, it suffices to say that we reach this result here because it is clear that the expanded rule would add little or nothing to the defendant's case. The defendant's counsel extensively impeached [the witness] concerning his lies to the police about the car and the mythical "Johnny Torres" who allegedly loaned the car to him—that is, even without the benefit of a changed rule, counsel was able to focus on the specific facts of an instance of untruthful conduct. In addition, [the witness] admitted during cross-examination to twelve prior criminal convictions, and the judge explained in his final jury charge that the jury were specifically entitled to use this extensive evidence in connection with assessing [the witness]'s credibility. In very limited circumstances, this court has permitted inquiry into prior specific instances of untruthfulness to impeach a witness's veracity....Because the benefit to the defendant of an expanded evidentiary rule concerning impeachment on the issue of veracity would be marginal at best, we leave to another day the question whether we should follow the guide of the Fed.R.Evid. 608(b), and adopt such a rule more generally.