EvidenceProf Blog

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

Tuesday, January 18, 2022

Eastern District of Missouri Finds Limitation of Cross-Examination Under Rule 608(b) Did Not Warrant a New Trial

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 (emphasis added).

As the use of the word "may" in the Rule makes clear, judges retain a good deal of discretion in deciding whether to allow questioning about specific instances of dishonesty.

In United States v. Hunter, 2022 WL 123793 (E.D.Mo. 2022), Gerald Hunter moved for a new trial after he was convicted of multiple conspiracies, arguing that

the motion should be granted because the Court erred in limiting his cross-examination of Andon Templer by preventing him from questioning Templer about “the multiple times he has broken his word to courts.” Defendant refers to Templer's admission during an offer of proof outside the presence of the jury that he regarded his multiple intentional violations of his terms of supervised release as “breaking his word to the court,” and argues this is directly probative on Templer's credibility and truthfulness.

The court rejected this argument, concluding that

Under Fed. R. Evid. 608(b), specific instances of witness untruthfulness may be inquired into on cross-examination in the discretion of the court. But such cross-examination is subject to limitation or exclusion, particularly where the subjects inquired into might confuse the jury or be “repetitive or only marginally relevant.” United States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also United States v. Beck, 557 F.3d 619, 621 (8th Cir. 2009).

Given the overall strength of the Government's case, and the fact that Defendant was able to vigorously cross-examine Templer on his desire to obtain a reduced sentence, his extensive illegal drug trafficking, and his prior convictions, as well as on the actual supervised release violations, questioning Templer about “the multiple times he has broken his word to courts” would not have resulted in an acquittal at trial and at most would have been repetitive. Defendant's first argument is, therefore, denied.



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