EvidenceProf Blog

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

Sunday, March 22, 2020

District Court Finds Gypsy Plaintiff Can be Impeached With Evidence He Previously Used Multiple Names & Dates of Birth

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.

So, under Rule 608(b), can an attorney cross-examine a witness who is a gypsy and who previously used multiple names and dates of birth?

In Moore v. Granlund, 2020 WL 1285329 (M.D.Penn. 2020), "Thomas Moore, a Pennsylvania state prisoner, filed this civil rights complaint...alleging that several defendants violated his rights during his incarceration at the Pennsylvania State Correctional Instruction Rockview." The defendants claimed that they should be able to impeach Moore with evidence that Moore previously used multiple names and dates of birth. This then prompted the court to hold as follows:

Moore in turn asserts that such evidence is not probative of his credibility, as he is of gypsy descent and, thus, was unsure of his birthdate or legal name. To defend against allegations that his use of different names and birthdates implicates his honesty, Moore asserts that he would be required to mention his gypsy ethnicity, which may be prejudicial to him.

Federal Rule of Evidence 608 allows parties to cross-examine witnesses on any issue that is “probative of the character for truthfulness or untruthfulness of...the witness.” As the United States Court of Appeals for the Ninth Circuit has noted, “[l]ying about one’s name constitutes specific conduct that implicates the [witness’] character for truthfulness.” Although the United States Court of Appeals for the Third Circuit has not directly addressed the impeachment value of using false names or birthdates, in an analogous situation it held that a witness could be cross-examined “about numerous blank social security cards recovered from his apartment” as such “evidence tended to ... show deceit, and it was therefore admissible to establish [the witness’] lack of truthfulness, not his character.”

In accordance with this case law, the Court concludes that Moore’s past use of multiple names and dates of birth is generally admissible, as such information is probative of his truthfulness or untruthfulness.35 While Moore argues that he will need to reveal information about his gypsy ethnicity to counter this evidence, the Court does not find that this militates against admitting such evidence. First, it would not be necessary for Moore to discuss his ethnicity to address this issue. Moore could simply note that he did not possess a birth certificate for most of his life and was unsure about his legal name and date of birth. Second, the Court is able to conduct a voir dire sufficient to ensure that any jurors are not biased against people of gypsy descent. By carefully crafting questions aimed at discovering any prejudice, the Court should be able to sufficiently “reduce the possibility of ethnic prejudice.” Accordingly, the Court concludes that evidence related to the use of aliases or different dates of birth is admissible at trial, and Defendants’ motion is conditionally granted.

-CM

https://lawprofessors.typepad.com/evidenceprof/2020/03/federal-rule-of-evidence-608b-provides-that-except-for-a-criminal-conviction-under-rule-609-extrinsic-evidence-is-not-adm.html

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