EvidenceProf Blog

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

Friday, May 24, 2013

I'll Admit It: Is Rule 608(b) Evidence "Admissible"?

Federal Rule of Evidence 608(b) provides that

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.

The Federal Rules of Evidence are not coterminous with the discovery rules. Some evidence that would be inadmissible is still discoverable, but some evidence that would be admissible at trial is not discoverable. The recent opinion of the United States District Court for the Southern District of New York in Guercia v. Equinox Holdings, Inc., 2013 WL 2156496 (S.D.N.Y. 2013), ostensibly deals with this latter situation...or does it?

In Guercia, Stacy Guercia brought a gender discrimination action

against her former employer, Equinox Fitness Club. She allege[d] that, during her time as a construction project manager for Equinox, she was subjected to derogatory comments about her gender and sabotaged in the performance of her duties because she was a woman. This pattern of sabotage became so pernicious, she allege[d], that she was forced to resign from the company. 


Guercia received notice on December 6, 2012 that Equinox intended to serve subpoenas on four of her former employers. The Subpoenas s[ought] basic employment information—dates of employment, compensation, responsibilities, etc.—from all four employers. 

Equinox claimed, inter alia, "that these employment records will tend to show that Guercia was untruthful in an affidavit she submitted in her 2005 personal bankruptcy filing. In that affidavit, Guercia represented to the bankruptcy court, under oath, that she was a student and had earned no income during the years 2004 and 2005." Specifically,

Equinox contend[ed] that it...uncovered an affidavit, filed in Guercia's 2005 personal bankruptcy proceeding, in which she claims to have been a student and to have had no income for the years 2004 and 2005. Equinox [claimed] that this contradict[ed] the resume Guercia submitted during the employment application process. This suggests that Guercia made false statements either in her affidavit or on her resume. Guercia's employment records would demonstrate which of these statements was false and, particularly if the false statements were in Guercia's sworn affidavit, undermine her credibility.

In response, Guercia moved to quash the subpoenas, and the Southern District of New York agreed, finding that

The problem is that the documents that Equinox seeks would not ultimately be admissible at trial—they would be barred under Fed.R,Evid. 608(b)Rule 608(b) provides that, other than evidence of criminal convictions, "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." It allows these matters to be “inquired into” on cross-examination, but this permits a party only to elicit testimony from the witness about these instances, not to introduce documentary evidence....

It is true, of course, that evidence may have relevance beyond its admissibility at trial. Though it might not be directly admissible, it might, for example, be valuable to a party in preparing its questions for "inquiring into" past conduct. Here, however, it is clear that Equinox already has access to evidence that would allow it to prepare such a line of questioning.

Thus, the marginal benefit to Equinox in obtaining the documents it seeks as evidence of Guercia's credibility is also small, and outweighed by the harm that would be done by obtaining them by subpoena from Guercia's former employers.

This takes me back to the introduction. I would consider the employment records to be admissible because they would be usable at trial even if extrinsic evidence concerning them could not be introduced. Similarly, assume that a defendant at a battery trial plans to admit good character evidence. I would consider evidence that he had attacked a neighbor at a youth soccer game to be admissible because a character witness could be asked about this attack even if extrinsic evidence concerning the attack could not be introduced.



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