Friday, November 29, 2013
Reputable Source?: Court of Appeals of Tennessee Precludes Testimony of Rehabilitation Witness Under Rule 608(a)
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) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
In Pyle v. Mullins, 2013 WL 6181956 (Tenn.Ct.App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?In Mullins, Johnny Pyle sued Betty Mullins for personal injuries sustained in a three-vehicle accident. At trial, there was the question of whether Pyle's injuries resulted from the accident, and defense counsel impeached him with evidence that he failed to disclose a prior accident during sworn testimony. Pyle then sought to elicit
character testimony from Jeff Boggan, one of Pyle's customers. Boggan, a resident of Village Green Subdivision, testified Pyle mowed his lawn and he had known Pyle for 5 years. He testified Pyle was under contract by the homeowner's association to mow all of the lawns in the subdivision. Pyle asked Boggan whether he was “familiar with [Pyle's] reputation in that area for honesty?” In response, defense counsel objected as to relevance. The trial court sustained the objection.
At the close of trial, Pyle made an offer of proof that "Boggan would have said he knew [Pyle's] reputation in that community for honesty." The following ensued:
The Court: At that point all [Boggan] had said is he knew he mowed in their subdivision. The point how he would know is all he would know about is him mowing in the subdivision. I had no other basis at that point to know how he would know—
Ms. Holt: I asked in that community.
The Court:—in reputation.
Ms. Holt: And you said, no, that subdivision isn't enough.
The Court: No. That's right. I said the subdivision is not enough, because you have to show the community in which he works or lives is exactly what the case law says. And the community in which he works is not just that subdivision
Ms. Holt: Right.
The Court: He works in a lot of subdivisions.
Ms. Holt: But that subdivision is a place where he works, so that was—
The Court: Okay. All right. Anything else, counsel?
After the jury only awarded Pyle $15,000 in compensatory damages, he appealed, claiming, inter alia, that the trial court erred by precluding Boggan's testimony. The Court of Appeals of Tennessee disagreed, concluding that
to warrant admitting evidence about a witness's reputation for truthfulness, it is necessary to qualify the reputation witness "through a showing of 'such acquaintance with the [person under attack], the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded.'" Here, we conclude that no proper foundation was laid to establish that Boggan was sufficiently acquainted with Pyle so as to enable him to “speak with authority” about Pyle's reputation for honesty in the community.
This seems to me to be an unnecessarily restrictive reading of Rule 608. Outside of Tennessee, I've seen any number of cases in which a witness has been able to testify about the credibility of another witness based upon their reputation in a particular place. See, e.g., Dynes v. Dynes, 637 N.E.2d 1321, 1323 (Ind.App. 2 Dist. 1994)("While early Indiana cases discussed character evidence with reference to reputation in the neighborhood of residence,...we find no Indiana cases holding that evidence of a witness's reputation in the workplace is inadmissible. And in Johnson v. State (1981), Ind.App., 419 N.E.2d 232, we allowed impeachment of a defendant through evidence of her general reputation for truth within the school she attended....Neither IC 34-1-14-13, nor Evid.R. 608(a) limits reputation evidence to reputation in the community of residence.").