§ 22.07 UNTRUTHFUL CHARACTER — REPUTATION AND OPINION: FRE 608(A)

• Jurisdiction: United States

§ 22.07. UNTRUTHFUL CHARACTER — REPUTATION AND OPINION: FRE 608(a)

Rule 608(a) permits the use of opinion and reputation evidence to show a witness's untruthful character,⁷⁰ including that of the accused.⁷¹ The limitation to veracity is intended "to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive."⁷² The common law restricted this type of impeachment to reputation. In contrast, Rule 608(a) allows the use of opinion evidence as well.⁷³ This change is consistent with the treatment of opinion evidence in Rule 405(a). Although permitting opinion testimony raises the possibility of using expert witnesses, courts have been reluctant to admit expert testimony in this context.⁷⁴

Foundational requirements. Before reputation evidence is permitted, a foundation must be laid showing that the character witness is acquainted with the witness's reputation in the community (i.e., where the principal witness lives, works, or goes to school).⁷⁵ A similar foundation is required before a witness may express an opinion. This latter inquiry, however, focuses on the character witness's personal relationship with the principal witness rather than on community contacts.⁷⁶

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Notes:

^[70] See also Fed. R. Evid. 803(20) (recognizing a hearsay exception for reputation evidence concerning character). See infra § 33.18 (discussing other hearsay exceptions).

^[71] E.g., United States v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994) ("The credibility of a defendant who testifies may be attacked in the same manner as that of any other witness. . . . The prosecutor asked Mrs. Carper whether she would believe McMurray's testimony under oath, based upon her opinion as to his truthfulness. This questioning is consistent with Rule 608(a).").

^[72] Fed. R. Evid. 608 advisory committee's note.

^[73] See United States v. Malady, 960 F.2d 57, 58 (8th Cir. 1992) ("Assuming the sheriff had sufficient contact with Counts, Malady could have asked the sheriff for his general opinion of Counts's truthfulness. Instead, Malady asked the sheriff whether he believed Counts's story. Because this is an impermissible means of impeachment, the district court properly sustained the Government's objection.") (citations omitted).

^[74] E.g., United States v. Cecil, 836 F.2d 1431, 1441 (4th Cir. 1988) ("[T]he authorities seem uniform that a psychiatrist may not testify to the credibility of a witness; that issue is one for the jury.")...