EvidenceProf Blog

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).

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Does the Right to Autonomy Apply at the Sentencing Stage of Trial?

In McCoy v. Louisiana, the Supreme Court concluded that a criminal defendant has the right to autonomy, i.e., the right “to decide on the objective of his defense.” Pursuant to this right, a defendant decides whether “to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In its recent opinion in Sexton v. State, 2024 WL 4156989 (Fla. 2024), the Supreme Court of Florida answered an interesting follow-up question: Does the right to autonomy apply at the sentencing stage of trial?

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Ninth Circuit Finds District Court Erred in Excluding Statement That Should Have Been Admissible Under Rule 803(3)

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

A good example of Rule 803(3) in action can be found in the recent opinion of the Ninth Circuit in United States v. Shen Zhen New World I, LLC, 2024 WL 4140629 (9th Cir. 2024).

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Federal Circuit Reverses District Court's Rule 703 Ruling

Federal Rule of Evidence 703 provides that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

It's rare to see a ruling reversed based on a judge misapplying Rule 703, but an example can be found with the recent opinion of the Federal Circuit in ParkerVision, Inc. v. Qualcomm Incorporated, 2024 WL 4094640 (Fed. Cir. 2024).

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Eighth Circuit Addresses the Scope of the 2014 Amendment to the Prior Consistent Statement Hearsay Exclusion

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay if

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground.

Subsection (ii) was added via a 2014 amendment, and courts are still trying to figure out the scope of this addition. The recent opinion of the Eighth Circuit in United States v. Begay, 2024 WL 4129017 (8th Cir. 2024), is the latest attempt to address this question.

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Fourth Circuit Finds Defendant Rap Lyrics Were Admissible After He Presented Good Character Evidence

Federal Rule of Evidence 404(a)(2)(A) provides that 

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it

One of the most controversial types of evidence that courts typically allow is rebuttal evidence of a defendant's rap lyrics after a defendant presents evidence of his good character. It's a phenomenon I've been writing about for years, including in my essay, Freedom of Character: Creating a Constitutional Character Evidence Test. A recent example can be found in the Fourth Circuit's opinion in United States v. Watkins, 111 F.4th 300 (4th Cir. 2020).

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Federal Rule of Evidence 605 and Judicial Functions

Federal Rule of Evidence 605 states that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Courts have held that Rule 605 prohibits presiding judges both from testifying and giving the functional equivalent of testimony. So, what constitutes the functional equivalent of testimony in this context? The recent opinion of the Tenth Circuit in United States v. Flechs, 98 F.4th 1235 (10th Cir. 2024), provides good examples of when a judge might violate or not violate Rule 605.

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The Limitations of Federal Rule of Evidence 704(b) & How Prosecutors Frequently Circumvent It

Federal Rule of Evidence 704(b) provides that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Under this Rule, expert witnesses are not allowed to testify that the defendant had a particular mens rea (e.g., "The defendant possessed the drugs with intent to distribute."). But, as opinions such as the recent one by the Sixth Circuit in United States v. Xu, 2024 WL 4002876 (6th Cir. 2024), make clear, experts come come awfully close to saying this very thing.

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Court of Appeals of South Carolina Finds Rule 801(d)(2)(B) Applied to Defendant's Head Nod

Similar to its federal counterpart, South Carolina Rule of Evidence 801(d)(2)(B) provides an exclusion to the rule against hearsay for

The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth.

The recent opinion by the Court of Appeals of South Carolina in State v. Gleaton, 2024 WL 3958596 (S.C. App. 2024), provides a good illustration of the rule in action.

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