Wednesday, September 25, 2024
How Far Can Attorneys Go In Cross-Examining Witnesses Under Rule 608(b)?
Federal Rule of Evidence 608(b) states the following:
(b) Specific Instances of Conduct. 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.
Under Rule 608(b), an attorney could clearly cross-examine a witness about whether they had committed an act of forgery. But could that attorney then asked that witness (a) whether they were sued for such forgery; and (b) whether the court ruled against them in that civil action? These were the questions addressed by the Eighth Circuit in its recent opinion in Davis v. Simon Contractors, Inc., 2024 WL 4195566 (8th Cir. 2024).
In Davis, Ryan Davis and Anthony Crane brought an action against Simon Contractors, sounding in strict products liability and negligent failure to warn. During the litigation,
Davis moved the court to exclude any evidence of his involvement in prior litigation. He argued it was irrelevant and unfairly prejudicial under Federal Rules of Evidence 401, 403, and 404(b). Davis was specifically referring to allegations of forgery against him that came out during trial on his former tile company's contract-based claim against another company, Porcelanosa. Davis's fiancée was also involved in that litigation.
Simon Contractors resisted. It argued the prior litigation could come in under Federal Rule of Evidence 608(b) because it was probative “as it relates to the character for truthfulness of witnesses intended to testify,” and it was relevant to Davis's and his fiancée's credibility. The district court agreed and ruled Simon Contractors on cross-examination could “inquire” into events that occurred in prior litigation because it had demonstrated a “good faith basis” that Davis and his fiancée “demonstrated a character for untruthfulness...during the prior litigation at issue.” The court reminded the parties “that this does not open the door to extrinsic evidence, relitigating a prior case, or a discussion of another court's assessment of any witness’ credibility.” It did not address Davis's counter arguments under Rules 403 or 404(b).
At trial, evidence was introduced about Davis's experience with cement mix products. Davis testified about his experience installing tile with thinset, working in tile sales and distribution, observing other people working with concrete, and helping family members with their small-scale concrete-installation projects. Crane testified about his experience installing tile, admitting that he had previously read a warning on a bag of thinset or grout that the product “may be an irritant” and would need to be rinsed off skin with water. But he did not recall reading anything about severe burns or the need to rinse it off immediately after contact.
Davis also testified about “a business dispute” that ended up being litigated in the Tenth Circuit....Davis vaguely summed up that litigation as involving multiple “[b]ack and forth” claims and said that his tile company ultimately “won some and ... lost some.” Simon Contractors cross-examined Davis and asked whether he previously had been accused of forgery in a breach-of-contract suit. Davis objected, arguing the information was irrelevant and that Simon Contractors was “getting very, very close” to introducing extrinsic evidence and commentary about another case, in violation of Rule 608(b). The district court overruled the objection and reiterated its pretrial ruling that Simon Contractors could inquire into the forgery allegations on cross-examination, and that its questioning was within the confines of the court's order. It again did not address Davis's concerns under Rules 403 or 404(b).
Simon Contractors followed up by asking questions to impeach Davis, asserting that the “truth”—contrary to Davis saying he “won some” and lost some claims—was that “[Porcelanosa] won on [its] counterclaims.” Davis repeated that he won and lost some claims, and on redirect, further denied the allegations of forgery or having been charged with, or convicted of, forgery or perjury in the past.
In addressing Davis's ensuing appeal, the Eighth Circuit held as follows:
[I]t was permissible to ask Davis, “Did you commit forgery?” because that question inquired into a specific act that went to Davis's character for truthfulness....
Here, however, Simon Contractors asked Davis a series of questions about the prior litigation that went further, including whether the opposing party had accused him of forgery and whether “the ruling of th[e] court” was that he had “forged those documents.” On appeal, Davis and Crane do not assert that this additional line of questioning exceeded the bounds of Rule 608(b). Rather, they argue that it was impermissible because it was more prejudicial than probative....Recognizing the testimony's potential for prejudice, we conclude that any error in permitting this line of cross-examination was harmless. Davis rehabilitated himself on redirect....And the probative questions at trial were whether Davis and Crane knew, or should have known, about the caustic properties of wet concrete and the need for PPE. The evidence on these issues, including their professional experience, was largely undisputed. On the trial record, any error in allowing this attack on Davis's credibility would not have had a substantial impact on the jury's verdict.
-CM
https://lawprofessors.typepad.com/evidenceprof/2024/09/federal-rule-of-evidence-608b-states-the-following-b-specific-instances-of-conduct-except-for-a-criminal-conviction-un.html