(a) Proof of reputation or opinion.A witness's credibility may be challenged or supported by statements about the witness's reputation for having a true or false character, or by statements in the form of an opinion about that character. However, the truthfulness check is only permissible after the truthfulness of the witness has been challenged.
(b) Specific Conduct.Except for a criminal conviction under rule 609, external evidence is not admissible to prove specific instances of a witness' aggressive behavior or to support the truthfulness of the witness. But the court may allow them to be cross-examined as to whether they are evidence of the truth or untruth of:
(1)The witness; either
(2)another witness about whose character the witness under cross-examination testified.
In testifying on any other matter, a witness does not waive self-incriminating privilege to testify solely as to the truthfulness of the witness.
(Pub. L. 93–595, §1, January 2, 1975, 88 Stat. 1935; March 2, 1987, effective October 1, 1987; April 25, 1988, effective November 1, 1988, March 27, 2003 , effective December 1, 2003, April 26, 2011, effective December 1, 2011.)
Advisory Committee Comments on Proposed Rules
subdivision (a). Rule 404(a) takes the general position that the character test is not admissible in order to prove that the person acted in accordance with him, but subject to several exceptions, one of which is the character test of a witness in relation to his or her credibility rule develops this exception.
According to most legal authorities, the investigation is strictly limited to the character of truthfulness, rather than allowing testing of character in general. The result is to increase relevancy, reduce surprises, wasted time and confusion, and make witnessing less attractive. McCormick §44.
The use of evidence of opinion and reputation as a means of establishing the character of witnesses is consistent with rule 405(a). While modern practice has attempted to exclude opinion witnesses who testify about reputation, in reality they often appear to be speaking out, somewhat misleadingly disguised as reputation. See McCormick §44. And even in modern practice, a common relaxation has made it possible to ascertain whether witnesses would believe the key witness under oath.United States vs. Walker,313 F.2d 236(6. Cir. 1963) and cases cited there; McCormick §44, pp. 94-95, note 3.
Evidence of character in support of credibility is only allowed under the rule after the witness' character has been attacked first, as is the case in common law. Maguire, Weinstein et al., Cases on Evidence 295 (5th ed. 1965); McCormick §49, p. 105; 4 Wigmore §1104. The enormous amount of unnecessary time that an opposite approach would entail justifies the restriction. Opinion or reputation that the witness is not truthful is specifically considered an attack under the rule, and evidence or wrongdoing, including criminal conviction and corruption, also falls under this category. No evidence of bias or interest. McCormick §49; 4 Wigmore §§1106, 1107. Whether conflicting evidence constitutes an attack on the character of the witness must depend on §§1108, 1109.
Regarding the use of certain instances directly by an opinion witness, see the Advisory Committee's note to rule 405,above.
subdivision (b). Under Rule 405, which prohibits the use of incident-specific evidence as primary character evidence unless the character plays a role in the case, this rule generally prohibits evidence for specific instances of witness conduct to attack or support your credibility. However, there is two exceptions: (1) certain cases are reviewable if they were the subject of a criminal conviction, and (2) certain cases may be reviewed by cross-examination of the principal witness or a witness's opinion of his character for veracity.
(1) Criminal convictions as criminal proceedings are dealt with extensively in Rule 609 and are recognized here simply as an exception to the general rule which excludes evidence of specific incidents for prosecution purposes.
(2) Individual cases of conduct, even if they are not the subject of a criminal conviction, may be ascertained by cross-examination of the key witness himself or of a witness who testifies to its accuracy. Effective cross-examination requires consideration of the possibility of entering into matters of this nature, but the opportunities for abuse are considerable. Consequently, a guarantee is established in the form of specific requirements that the cases examined are proof of correctness or the contrary and are not far off the mark. In addition, the primary protection of rule 403 requires that the value of the evidence not be outweighed by the risk of unfair bias, confusion of facts, or misleading the jury, and rule 611 prohibits harassment and undue embarrassment.
The last sentence represents a rejection of the doctrine of such cases aspeople against worry, 301 New York 198, 93 N.E.2d 637 (1950) that all credible past crimes may be cross-examined in apparent disregard of the privilege of self-incrimination. While it is clear that an ordinary witness cannot partially disclose an incriminating matter and then invoke cross-examination privilege, no tenable claim can be made that simply by testifying he waives his right to conduct any cross-examination activities. with the aim of attacking their credibility. Retention would therefore reduce the privilege to nullity. While it is true that a defendant, unlike an ordinary witness, has the opportunity to testify, if the option can only be exercised at the price of opening an investigation into all crimes committed during his lifetime, the right to testify could be one can hardly say that they have a lot of vitality. InGriffin vs California,380 n. Chr. UU. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) the Court held that there was a constitutionally unacceptable price to comment on an accused's decision not to testify, and so it does here. While no specific provision in the Terms confers constitutional status on an accused's right to testify in his or her own defense, the existence of the right is so widely recognized that its refusal or material breach would certainly have the dimension of due process. . RegardFerguson vs Georgia,365 EE. UU. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); McCormick §131; 8 Wigmore §2276 (McNaughton Rev. 1961). In any event, constitutional considerations aside, the provision constitutes sound policy.
Judiciary Committee Notes, House Report #93–650
Rule 608(a) put forward by the Court allowed the truthfulness or untruthfulness of a witness to be challenged, either because of his reputation or because of his opinion. For the same reasons that support its decision to remove the admissibility of expression of opinion in rule 405(a), the Committee amended rule 608(a) to remove the reference to expression of opinion.
The second sentence of Rule 608(b) submitted by the Court allowed certain instances of misconduct by a witness to be cross-examined with the aim of attacking his credibility if he proved his truth or untruth, "and not remotely in time". Said cross-examination could be the witness himself or another witness testifying about "his" nature of truth or untruth.
The committee amended the rule to emphasize the court's discretionary powers in admitting such testimony, removing the reference to the distance in time as unnecessary and misleading (remote from the time of the trial or from the incident in question?). The Committee's amendment, as recast, also clarifies the pre-concept for "to be" in the Court's original proposal.
Conference Committee Notes, House Report #93–1597
The Senate amendment adds the words "opinion or" to align the first sentence of the rule with the rest of the rule.
The conference accepts the Senate amendment.
Comments of the Advisory Committee on Standards - Amendment of 1987
The changes are of a technical nature. No significant change is intended.
Comments of the Advisory Committee on Standards - Amendment of 1988
The change is of a technical nature. No significant change is intended.
Committee Notes to Rules of Procedure - 2003 Amendment
The rule was changed to clarify that the absolute ban on external evidence applies only when the sole reason for offering that evidence is to challenge or support the veracity of the witness.See United States v. Abel,469 EE. UU. 45 (1984);United States vs. Fusco,748 F.2d 996(5 Cir. 1984) (Rule 608(b) restricts the use of evidence “designed to show that the witness has done things which have nothing to do with the ongoing legal proceedings and which make him more or less credible per se do"); Ohio R. Evid. 608(b). The rule's use of the overly broad term "credibility" has sometimes been interpreted "to prohibit extrinsic incriminating evidence of bias, competence, and adversity, since they too are concerned with credibility." Litigation Division of the American Bar Association,Emerging issues under the Federal Rules of Evidenceat 161 (3rd ed. 1998). The amendment aligns the rule's language with its original intention, which was to impose an absolute prohibition on external evidence only when the sole purpose of the evidence was to prove the truth of the witness's character.VerAdvisory Committee Comment on Rule 608(b) (stating that the rule “[i] in accordance with rule 405, which precludes the use of evidence from specific incidents as primary proof of character, unless the character is questioned , if ... ").
By limiting the rule's application to testing a witness's truthfulness, the amendment leaves the admissibility of external evidence offered for other prosecution grounds (such as dissent, conflicting prior testimony, bias and mental capacity) to the rules.402j403.See, for example, United States v. Winchenbach,197 F.3d 548(1st Cir. 1999) (The admissibility of a prior conflicting charge is governed by the Rules402j403, not Rule 608(b));United States vs. Tarantino,846 F.2d 1384(D.C. Cir. 1988) (Admissibility of external evidence offered to contradict a witness is governed by Rules 402 and 403);United States against Lindemann,85 F.3d 1232(7. Cir. 1996) (Admissibility of external evidence of bias is governed by Rules 402 and 403).
It should be noted that the prohibition on extrinsic evidence in rule 608(b) precludes any reference to the consequences that a witness may have suffered as a result of alleged misconduct. For example, rule 608(b) prohibits the attorney from mentioning that a witness has been suspended or disciplined for conduct that is the subject of the indictment if that conduct is offered only to prove the character of the witness.See United States v. Davis,183 F.3d 231, 257 n.12 (3d Cir. 1999) (emphasizing that when the government challenges the defendant's character for his truthfulness, "it cannot invoke Davis' forty-four day suspension or that Internal Affairs has discovered that he about "lied about an incident because" [such] evidence would not only be hearsay to the extent that it contained a statement of fact, but would be inadmissible outside evidence under rule 608(b)").See alsoStefan A. Salzburg,Witness Rebuttal: Past Misconduct and External Evidence, 7 Crimea. Just. 28, 31 (Winter 1993) (“Attorneys should not be allowed to circumvent the extrinsic non-evidence rule by including in a question to the witness who denied the act a third-person opinion of prior acts include").
For the sake of consistency, in the last sentence of subsection (b), the term “credibility” has been replaced by the term “truthfulness”. The term "credibility" is also used in subsection (a). However, the Committee found it unnecessary to replace "truthfulness" with "credibility" in rule 608(a), since subsection (a)(1) already serves to limit the charge to evidence of such character.
Rules 609(a) and 610 also use the term “credibility” when the intent of those rules is to govern a witness's assertion of truthfulness. No conclusion should be drawn from the fact that the Committee proposed an amendment to rule 608(b) but not to the Rules.609j610.
Post-release changes and comments. The last sentence of Rule 608(b) was amended to replace the term "truthfulness" with the existing term "credibility". This change was made in response to public comments suggesting that it would be helpful to provide consistent terminology in rule 608(b). A stylistic change was also made to the last sentence of rule 608(b).
Committee Rules of Procedure Notes – 2011 Amendment
The wording of rule 608 has been changed as part of the general redesign of the rules of evidence to make it easier to understand and to keep the style and terminology consistent across the rules. These changes are meant to be stylistic only. It is not intended to alter any outcome of a decision on the admissibility of evidence.
The Committee understands that Rule 607, which allows a party to charge witnesses in a direct examination, overrides the prosecution rule's limitation of misconduct to “cross-examination”. The courts have not relied on the term "cross-examination" to limit prosecutions that would otherwise be permitted under the Rules.607j608. Therefore, the Committee concluded that there was no need to change the wording of the rule in the context of a redesign project.