CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, September 28, 2015

Rothstein on Evidence of Nonconviction Misconduct

Rothstein paulPaul F. Rothstein (Georgetown University Law Center) has posted Comment on Prof. Imwinkelried's 'Formalism V. Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching Untruthful Acts that Have Not Resulted in Conviction': Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude? --- Imwinkelried vs. Rothstein (Creighton Law Review, Forthcoming) on SSRN. Here is the abstract:

Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted - for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge: 

1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;
2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly evincing the witness’s lack of credibility, where the witness himself on cross exam could authenticate the document so it could be used conveniently and expeditiously without undue time consumption; and
3. Evidence of the result in an unrelated previous civil action, for example where the witness was a party and an adverse verdict clearly establishes his position was fabricated, or where he was only a witness but the verdict makes it clear the trier of fact rejected his contention as fabricated.

I agree with Prof Imwinkelried that these can be powerful pieces of evidence on occasion and should be admissible in the judge’s discretion upon consideration of such factors as probative value on the issue of the witness’s credibility, time consumption, and prejudice. But Prof. Imwinkelried and I disagree as to whether the literal language of Federal Rule of Evidence 608(b) bans them absolutely. Prof. Imwinkelried believes it does, and therefore should be amended. I believe it does not and therefore does not require amendment.

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