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Univ. of South Carolina School of Law

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Thursday, October 24, 2013

Impeachable Offense?: Court of Appeals of Idaho Finds Misdemeanor Conviction Admissible Under Rule 608(b)

Idaho Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility, of the witness, 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 concerning (1) the character of the witness for truthfulness or untruthfulness, or (2) the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 

Meanwhile, Idaho Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness. If the evidence of the fact of a prior felony conviction, but not the nature of the conviction, is admitted for the purpose of impeachment of a party to the action or proceeding, the party shall have the option to present evidence of the nature of the conviction, but evidence of the circumstances of the conviction shall not be admissible. 

So, assume that a witness has a prior misdemeanor conviction which is probative of his untruthfulness. Evidence of this conviction would clearly be inadmissible under Rule 609(a) because it is a misdemeanor and not a felony. But could it be used to cross-examine the witness under Rule 608(b)?According to the recent opinion of the Court of Appeals of Idaho in State v. Bergerud, 2013 WL 5716821 (Idaho App. 2013), the answer is "yes."

In Bergerud, Daniel and Kathleen Bergerud were convicted of several drug offenses. Robert Jones testified against the Bergerud's at trial, and

the Bergeruds sought to cross-examine Jones by asking whether he had ever lied to police, and if he denied having done so, the Bergeruds sought permission to impeach Jones with evidence of the conviction. The State objected that such cross-examination was prohibited by Idaho Rules of Evidence 608 and 609. The district court sustained the State's objection, precluding questioning of Jones about lying to police or about the conviction. The court held that Idaho Rule of Evidence 609 barred the admission of the conviction because the crime was not a felony and also held that an episode of lying to police was not relevant for impeachment because it was not probative of Jones's credibility.

After the were convicted, the Bergeruds appealed, claiming that this evidentiary ruling was erroneous. The Court of Appeals of Idaho agreed, finding that the proposed cross-examination clearly should have been allowed pursuant to the plain language of Idaho Rule of Evidence 608(b). The State countered, however,

that even though Rule 608(b) permits cross-examination of a witness concerning the witness's prior conduct that bears upon credibility, evidence of Jones's dishonesty with police is nonetheless inadmissible because it constituted a misdemeanor for which Jones was convicted, and under Rule 609 only felony convictions may be used for the purpose of attacking a witness's credibility. That is, the State contends, that only probative acts of dishonesty that did not result in a conviction are admissible under Rule 608. For this proposition, the State relies upon several federal court decisions construing the corresponding federal rules. For example, the Ninth Circuit Court of Appeals recently held that “Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609....” United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir.2009).

The Court of Appeals of Idaho, however,

conclude[d] the federal authorities are inapposite...because Federal Rule of Evidence 609 differs in a significant way from I.R.E. 609. The Idaho rule permits use of a prior conviction to show a witness's untruthfulness only if the prior conviction was a felony, whereas F.R.E. 609(a) permits evidence of conviction of “any crime regardless of the punishment ... if the court can readily determine that establishing the elements of the crime require proving—or the witness's admitting—a dishonest act or false statement.” Thus, federal Rule 609, unlike the Idaho rule, permits the use of both felony and misdemeanor convictions if they are probative of the witness's honesty. Under that rule, evidence of a misdemeanor of the type in question here would be admissible by terms of Rule 609 without need to resort to Rule 608. Under the Idaho rules, by contrast, Rule 609 does not authorize extrinsic evidence of misdemeanor convictions, even if they are indicative of the individual's character for truthfulness or untruthfulness, so the question remains whether evidence of the conduct (but not the misdemeanor conviction itself) may be admitted on cross-examination under Rule 608

The court thus ahreed with the Bergeruds, concluding that

The interpretation that is urged by the State not only is inconsistent with the words of Rule 608(b), it would also lead to an anomalous result. It would permit cross-examination of a witness about prior conduct for which the witness was charged with a misdemeanor if the charge was dismissed through plea bargaining or for other reasons unrelated to the merits, but it would prohibit such cross-examination if the person was actually convicted of the misdemeanor. We therefore hold that under Rule 608(b), the district court possessed discretion to permit cross-examination of Jones about his episode of lying to police and that the district court erred in failing to recognize this discretion.

-CM

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