Witness Character for Truth or Untruth [607, 608, 609]

Question 1

When can 607, 608, and 609 be used?

Answer 1

Only when the witness is on the testimony stand.

Question 2

Which party may initiate an attack on a witness for truthfulness?

Answer 2

Either party.

Question 3

FRE 608: Witness Truth - When is extrinsic evidence admissible to prove a witness’s untruth?

Answer 3

Never. Extrinsic evidence may not be admissible to prove specific instances o a witness’s character for truth or untruth.

Question 4

FRE 608(a): How may a witness’s credibility be attacked?

Answer 4

A witness’s credibility may be attacked by way of reputation or opinion evidence.

Question 5

FRE 608(b): What is unique about cross-examination for witness credibility?

Answer 5

608(b) permits the use of specific instances during cross-examination to show witness conduct with a few limitations.

Question 6

What does the good faith standard mean in the context of 609 mean?

Answer 6

A good faith basis must exist for the questions being asked to question the witness’s credibility. No hunches allowed. The questions also may not refer to arrests.

Question 7

Does rule 608 require the 401/403 balancing test?

Answer 7

Yes! A court must look at the 401/403 balancing test to determine whether or not the evidence is relevant.

Question 8

FRE 608(a) - How can a witness’s character for untruthfulness be attacked?

Answer 8

1) Testimony from another witness about the prior witness’s reputation for having a character of untruthfulness
OR
2) Opinion about the prior witness’s character for untruthfulness.

Question 9

FRE 608(a)- Once a witness’s credibility is attacked, what can be done?

Answer 9

If attacked, a witness’s character may be rehabilitated by:
1) Testimony about the witness’s reputation for having a character of truthfulness;
OR
2) Opinion about character for truthfulness.

Question 10

FRE 608(b) - A fact witness may be attacked on cross examination:

Answer 10

1) About the witness’s specific acts that are probative of untruthfulness.
a) No questions regarding arrests or convictions;
(b) Must have a good faith basis for the question;
(c) No extrinsic evidence allowed.

Question 11

What are examples of specific instances of untruthfulness under 608?

Answer 11

Instances that are character of untruthfulness: using a false name, filing false tax returns, forgery, perjury.
Examples of what wont qualify: drug use or violent crimes.

Question 12

FRE 609: Establishes what?

Answer 12

1) Establishes guidelines for the use of a witness’s prior criminal convictions as a basis for impeachment of the witness’s character for truthfulness.
2) Premised on the belief that a witness’s criminal past is indicative of a dishonest character or a willingness to flaunt the law.

Question 13

FRE 609(a)(1)(A): What does Civil Case or Witness not Defendant state?

Answer 13

A prior conviction for any crime punishable for over one year must be admitted to attack the truthfulness of the witness if:

a) 403/401 balancing test is satisfied;
b) 10 year rule is satisfied;
c) Pardon rule is satisfied.

Question 14

FRE 609(b) - 10 year rule

Answer 14

If more than 10 years has passed since the witness’s conviction or release from confinement, admissible only if:

1) its probative value, supported by specific facts, substantially outweighs its prejudicial effect;
2) the proponent gives the adverse party notice of use.

Question 15

FRE 609(c) - Pardon Rule

Answer 15

If a witness has been pardoned, the prior conviction is generally inadmissible.

Question 16

FRE 609(a)(1)(B): Witness is the Criminal Defendant

Answer 16

Prior conviction for ANY CRIME punishable for over one year must be admitted to attack the truthfulness of the defendant witness, if:

a) probative value outweighs the prejudice (401/403 test);
b) 10 year is satisfied;
c) Pardon Rule is satisfied.

Question 17

FRE 609(a)(2): Any Witness in a Civil or Criminal Case

Answer 17

If the witness is one involving dishonesty or fraud regardless of the punishment must be admitted as long as:

1) 403/401 balancing test is fulfilled;
2) 10 year rule is satisfied;
3) Pardon rule is satisfied.

Note: Dishonest crimes include - perjury, counterfeiting, fraud, embezzlement, failure to file a tax return. These are not dishonest crimes: violent crimes, theft, robbery, drug offense.

Question 18

What is a dishonest conviction for the purposes of FRE 609(a)(2):

Answer 18

Dishonest: Perjury, counterfeiting, fraud, embezzlement, etc.
Not dishonest: violent crimes, theft, robbery, drug offenses.