Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609

Federal Rule of Evidence 609 allows for witnesses to be impeached through evidence of their prior convictions. Meanwhile, Federal Rule of Evidence 608(b) provides in relevant part that

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

So, how do these two Rules work together? Does the above cited language from Rule 608(b) mean that evidence relating to a conviction is treated solely under Rule 609? Or does this language indicate that the defendant's actions which led to his conviction can be inquired into on cross-examination and that they can be proven by extrinsic evidence? This was the question presented to the Ninth Circuit in United States v. Osazuwa, 2009 WL 1232107 (9th Cir. 2009).

In Osazuwa, Daniel Osazuwa appealed fro his conviction for assaulting a federal prison guard while he was incarcerated for failing to pay restitution associated with a bank fraud conviction. At trial, Osazuwa had testified in his own defense, leading the prosecution to impeach him through his bank fraud conviction. The prosecution, however, did not stop at merely asking Osazuwa about his conviction, but instead questioned him at length about the dishonest conduct that led to his conviction.

The basis for Osazuwa's appeal was that, under Federal Rule of Evidence 609, "'absent exceptional circumstances, evidence of a prior conviction admitted for impeachment purposes may not include collateral details and circumstances attendant upon the conviction.'" The prosecution countered that it could delve into the dishonest conduct that led to Osazuwa's conviction under Federal Rule of Evidence 608(b). According to the prosecution, "Rule 608 provides only that, while specific instances of the conduct of a witness may not be proved by extrinsic evidence, extrinsic evidence is admissible to prove criminal convictions." Conversely, Osazuwa contended that Rule 608 exempts from its coverage a witness' prior criminal convictions and instead delegates to Rule 609 Rule 609 any questions relating to such convictions."  

And the Ninth Circuit found that "[b]oth Defendant's and the government's constructions [were] plausible." To resolve the dispute, the court thus went to the Advisory Committee's Note to Rule 608, which states that 

"[p]articular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination” and “[c]onviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes."

The Ninth Circuit found that this language clearly supported Osazuwa's reading of the two Rules and noted that many courts across the country had reached a similar conclusion. The court thus found that the intensive interrogation of Osazuwa was erroneous and reversed his conviction.

-CM