Evidence Flashcards
Under Rule 608(b), was it proper to cross-examine Witness about
his alleged lie on his job application?
Under Rule 608(b), a trial court has discretion to permit cross-examination of a witness concerning a specific instance of untruthful conduct. Lying on a job application represents untruthful conduct and an important issue in this case—whether Plaintiff removed the safety guard—will probably turn on the credibility of the witnesses. Thus, the Court was within its discretion in permitting the cross-examination.
Standard of review
The standard of review regarding an alleged error in an evidentiary ruling is abuse of discretion. A trial court’s ruling should be affirmed, even if the court of appeals would make a different ruling, if the challenged ruling lies within the zone of reasonable disagreement.
Character Evidence
Character evidence is generally inadmissible to prove action in conformity with the character trait. FED. R. EVID . 404(a). However, when a person testifies as a witness, that person’s credibility becomes a material issue; a witness’s credibility thus may be attacked by showing that the witness has an untruthful character. FED. R. EVID . 404(a)(3). Accordingly, a court may, in its discretion, admit evidence relating to a prior bad act if it is offered during cross-examination of the witness being impeached and is “probative of . . . untruthfulness.” FED. R. EVID. 608(b).
Conduct that involves falsehood or deception is generally considered probative of untruthfulness. See United States v. Cole , 617 F.2d 151 (5th Cir. 1980) (submitting a false excuse for being absent from work); United States v. Mansaw , 714 F.2d 785, 789 (8th Cir. 1983) (giving a false name); United States v. Reid , 634 F.2d 469, 473–74 (9th Cir. 1980) (giving false name, occupation, name of business, and purpose in information request to government).
Under Rule 608(b), was Witness’s job application admissible to
contradict Witness’s denial that he had lied, or was it inadmissible
extrinsic evidence?
With respect to the job application, Rule 608(b)
expressly forbids the admission of extrinsic evidence of a prior bad act. Some federal courts hold that any document is extrinsic evidence; others hold that a document is not extrinsic evidence if
it can be authenticated by the witness. Thus, the Court was within its discretion in excluding Exhibit 37, the job application.
The trial court was within its discretion in excluding Exhibit 37 because Rule 608(b) forbids the use of extrinsic evidence to attack a witness’s character for truthfulness.
Extrinsic Evidence
Rule 608(b) expressly prohibits the use of extrinsic evidence to impeach a witness’s character for truthfulness: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness . . . may not be proved by extrinsic evidence.” FED. R. EVID . 608(b). Thus, although a witness may be cross-examined about a prior alleged lie,
if he refuses to admit to lying, he may not be contradicted with extrinsic evidence. Rule 608(b) does not define “extrinsic evidence,” and there is disagreement among federal courts and
evidence scholars about the term’s meaning. With respect to documents, one approach holds that a document is extrinsic evidence in all circumstances. The other, more lenient approach holds that a document is not extrinsic evidence if the witness being impeached can provide the foundation for admission of the document.
Extrinsic Evidence to refresh recollection
Exhibit 37 was not admissible to refresh Witness’s recollection because Rule 612 permits only counsel for the opposing party to offer such a document into evidence.
Exhibit 37 was inadmissible even if it had been used to refresh
Witness’s recollection because the use of Exhibit 37 to refresh Witness’s recollection does not make it automatically admissible. Rule 612 authorizes admission of a recollection-refreshing exhibit only if offered by the lawyer who has not used the exhibit to refresh the recollection of the witness.
Under Rule 608(b), was Contractor’s testimony admissible to
impeach Witness, or was it inadmissible extrinsic evidence?
Finally, Contractor’s testimony was not admissible under Rule 608(b) because, although probative of untruthfulness, it was clearly extrinsic evidence.
The trial court properly excluded the testimony of Contractor because testimony by another witness represents extrinsic proof of the prior bad act and therefore is not admissible under Rule 608(b).
Refusal of Contractor testimony
The trial court correctly refused to permit testimony from Contractor that Witness had claimed 12 years of experience on his job application. This testimony was relevant only to the witness’s
credibility and clearly constituted extrinsic evidence. FED. R. EVID . 608(b); see also United States v. Abel , 469 U.S. 45, 55 (1984) (witness’s testimony about defendant’s gang membership was
inadmissible extrinsic evidence of defendant’s veracity; however, evidence of gang membership was admissible to show defendant’s bias).
