Thursday, August 15, 2024
The Key Difference Between Federal Rule of Evidence 608(b) and its Oregon Counterpart
In pertinent part, 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.
Oregon's version of the rule, however, is different.
Under Oregon's version,
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS 40.355, may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.
So, what does this mean in practice? Assume that Erica, an eyewitness to a murder, was fired from her job for stealing money from petty cash, but never charged or convicted for any crime in connection with this act of embezzlement.
In a trial held under the Federal Rules of Evidence, defense counsel could ask Erica on cross-examination about being fired if the court determined that her act of embezzlement was sufficiently probative of her character for untruthfulness. The defense, however, could not follow up by calling Erica's boss to testify to the theft or introduce a surveillance video of the theft because both would constitute extrinsic evidence.
Conversely, in a trial held under the Oregon Rules of Evidence, defense could could not ask Erica about being fired and also could not call the boss or introduce the surveillance video. As the language of the Oregon rule makes clear, such an act cannot be inquired into at all.
-CM
https://lawprofessors.typepad.com/evidenceprof/2024/08/in-pertinent-part-federal-rule-of-evidence-608b-provides-that-except-for-a-criminal-conviction-under-rule-609-extrinsic.html
Comments
KW: That makes sense. You could call the boss, but you could not ask him to testify about the embezzlement (unless, as you note, the door was later opened for that line of inquiry).
Posted by: Colin Miller | Aug 19, 2024 6:54:28 AM
Oregon public defender here. In the hypothetical above, I would be able to call the boss as a witness. I would ask the boss how long they have known Erica, and if in that time they have developed an opinion related to her character for truthfulness. Boss then gets to testify that their opinion is that Erica is characteristically not truthful. If the DA crosses the boss about the firing, they've opened the door to get into the embezzlement.
Yes, the Oregon rule is different, but the range of cases where the distinction matters is, in my view, likely pretty minimal. A defense attorney can still cross on motive and bias (there is a special rule for this), and even get into specific instances of conduct where a witness has made prior false reports (under Oregon's confrontation caselaw). And if the witness has been convicted, Oregon's rule on the admissibility of that prior conviction is expansive. I think it would be a pretty rare case where a defense attorney wants to break down the credibility of an otherwise unbiased witness who has never made a prior false allegation on the ground that they know of an untruthful, unprosecuted act unrelated to the case but they lack any witnesses who are willing to testify as to opinion/reputation for truthfulness.
Posted by: KW | Aug 15, 2024 9:42:40 AM