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

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Tuesday, May 7, 2013

Inconsistent Consistency: Rule 608(b) & Proving Prior Inconsistent Statements Through Extrinsic Evidence

Federal Rule of Evidence 608(b) states:

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.

As the recent opinion of the Fourth Circuit in United States v. English, 2013 WL 1832106 (4th Cir. 2013), makes clear, however, this limitation on the admissibility of extrinsic evidence only applies when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness. 

In English, Kevin Lou English appealed a district court's order committing him as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act of 2006. Specifically, English alleged, inter alia, that the district court abused its discretion in allowing a prior victim to testify as an impeachment witness to contradict his testimony.

English claimed that the former victim's testimony was inadmissible extrinsic evidence under Rule 608(b), but the Fourth Circuit disagreed, finding "that the district court did not abuse its discretion in admitting the witness' impeachment testimony regarding extrinsic evidence for purposes of contradicting English's testimony." As support, the court cited to the Advisory Committee's Note to the 2003 amendment to Rule 608, which stated in relevant part that

The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness. See United States v. Abel, 469 U.S. 45 (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 1984) (Rule 608(b) limits the use of evidence "designed to show that the witness has done things, unrelated to the suit being tried, that make him more or less believable per se"); Ohio R.Evid. 608(b). On occasion the Rule's use of the overbroad term "credibility" has been read "to bar extrinsic evidence for bias, competency and contradiction impeachment since they too deal with credibility." American Bar Association Section of Litigation, Emerging Problems Under the Federal Rules of Evidence at 161 (3d ed. 1998). The amendment conforms the language of the Rule to its original intent, which was to impose an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witness’ character for veracity. See Advisory Committee Note to Rule 608(b) (stating that the Rule is "[i]n conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is in issue in the case...").

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/05/federal-rule-of-evidence-608bstates-except-for-a-criminal-conviction-under-rule-609-extrinsic-evidence-is-not-admissible.html

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