§ 22.15 REHABILITATION

• Jurisdiction: United States

§ 22.15. REHABILITATION

As a general rule, rehabilitation evidence must directly answer the impeachment evidence.

[A] Untruthful Character: FRE 608(a)(2)

Once a witness's character for truthfulness has been attacked, opinion and reputation evidence showing that the witness has a good character for truthfulness is admissible. The main issue in applying this rule is determining what types of impeachment constitute attacks on character and thus trigger the right to rehabilitate by evidence of truthful character. If the witness's character has been attacked under (1) Rule 608(a) (opinion or reputation); (2) Rule 608(b) (specific instances); or (3) Rule 609 (prior convictions), rebuttal evidence of truthful character is admissible.²⁰³ Impeachment for bias (other than corruption) and by prior inconsistent statement are not character attacks and therefore truthful character is not admissible to rehabilitate.²⁰⁴

[B] Prior Consistent Statements

Prior consistent statements do not rehabilitate impeachment by prior inconsistent statements because the inconsistency remains unexplained. However, in some circumstances, a consistent statement may rehabilitate. Rule 801(d)(1)(B) permits the admission of consistent statements to rebut an express or implied charge of recent fabrication or improper influence or motive. The rule makes these consistent statements substantive evidence, rather than evidence merely affecting credibility. Some courts hold that statements not admissible under Rule 801 are nevertheless admissible for rehabilitation.²⁰⁵

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Notes:

^[203] Fed. R. Evid. 608 advisory committee's note ("Opinion or reputation thatthe witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not.").

^[204] See United States v. Drury, 396 F.3d 1303, 1316 (11th Cir. 2005) ("[T]he prosecution's questioning the veracity of the accused's testimony and calling attention to inconsistencies therein does not constitute an attack on the accused's reputation for truthfulness permitting rehabilitative testimony.") (citation omitted); Renda v. King, 347 F.3d 550, 554 (3d Cir. 2003) ("The...