§608 Cross-examination and the Use of Extrinsic Evidence to Impeach a Witness's Character for Truth and Veracity

• Library: Evidence Restated Deskbook (2021 Ed.)

§608 Cross-Examination and the Use of Extrinsic Evidence to Impeach a Witness's Character for Truth and Veracity

A. Cross-examination. Cross-examination is permitted to impeach a witness on the witness's character for truth and veracity. The means must be directed toward the ultimate issue of a witness's credibility; thus, a witness may not be impeached by evidence that the witness's general moral character is bad or that the witness's general reputation for morality is bad. It must be confined to the witness's character for truthfulness and veracity.

1. Limitations on cross-examination of character of person being cross-examined. When the person whose character for truth and veracity is being impeached is the person on the stand, the person may be asked about specific instances of that person's own conduct that speak to that person's own character for truth and veracity, even when the issue inquired about is not material to the substantive issues in the case. The questions must be asked in good faith.

2. Limitations on cross-examination of character of someone else about whom the person on the stand was questioned. When the person on the stand has testified to the general reputation in the community of another witness for truth and veracity, that person may be cross-examined about specific instances of the other person's conduct provided that:

a. the questions are asked in good faith;

b. as a means of testing the accuracy of the witness's testimony about the other's reputation for truthfulness; and

c. the question asks whether the witness has "heard about" the particular matter.

3. Discretion of the court. The allowance and the extent of this cross-examination is subject to the trial court's discretion to limit or exclude the evidence when its probative value is outweighed by its prejudicial effect.

B. Extrinsic evidence

1. Reputation evidence. A person may be called to impeach the character of a witness who has testified in a case. The witness may be asked about the other person's general reputation in the community for truth and veracity.

2. Specific instances of conduct. Parties may introduce extrinsic evidence of specific instances of conduct probative of truth and veracity when:

a. the witness denies the specific instances of conduct on cross-examination; and

b. subject to the trial court's discretion to limit or exclude evidence so as to avoid undue prejudice, the trial court finds that the admission of the extrinsic evidence is more probative than prejudicial.

C. Rehabilitation. Evidence of the good character of a witness for truth and veracity is admissible only after the character of the witness for truth and veracity has been attacked by reputation evidence or otherwise.

Notes

A. Cross-examination

A witness's character for truth and veracity may be impeached through cross-examination of the witness. The cross-examination must be directed only toward the ultimate issue of a witness's credibility. Accordingly, the cross-examination must be confined to the witness's character for truth and veracity, and not to the witness's general moral character or morality. Mitchell v. Kardesch, 313 S.W.3d 667, 676–77 (Mo. banc 2010).

1. Limitations on cross-examination of character of the person being

cross-examined

Different limitations on this impeachment apply depending on whether the impeachment relates to the person on the stand or someone else about whom the person on the stand is being questioned.

When the impeachment concerns the character of the person being cross-examined, "the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity." Mitchell v. Kardesch, 313 S.W.3d 667, 677 (Mo. banc 2010).

Thus, for example, it was held proper in:

· State v. Zahn, 823 S.W.2d 18, 22 (Mo. App. E.D. 1991), to cross-examine the defendant to bring out that he had perjured himself during his dissolution case;

· Mitchell, 313 S.W.3d at 670, to ask a defendant on cross-examination about his prior false interrogatory answers; and

· State v. Allison, 326 S.W.3d 81 (Mo. App. W.D. 2010), to cross-examine a detective about the use of drugs by his confidential informant after the detective had testified on direct examination that he had never permitted the informant to use drugs in his presence.

There is no hard and fast rule for determining when a specific instance of conduct speaks to a witness's truth or veracity. But it is clear that this limitation would not permit inquiry about every prior bad act. Bad moral character and character for truth and veracity are not synonymous.

Id. at 92; see also Goodman v. Holly Angle, LMT, 342 S.W.3d 458, 466–67 (Mo. App. W.D. 2011) (in this negligence action against a massage therapist, there was no abuse of discretion in the trial court's refusing to allow cross-examination of the massage therapist about the contents of books in her office received as part of her continuing education and training, which contained unconventional practices and techniques, because they did not speak at all to her character for truthfulness or to her qualifications or any issue in the case); Gamble v. Browning, 379 S.W.3d 194, 206 (Mo. App. W.D. 2012) (no error was found in allowing the cross-examination of a witness regarding the witness's use of false identification and a false identity because such use is "certainly relevant to his truthfulness").

But whether to allow cross-examination about prior acts of misconduct, and the extent of that cross-examination, is left to the trial court's discretion in limiting or excluding the evidence when its value is outweighed by its prejudicial effect. State v. Cleveland, 583 S.W.2d 263, 266 (Mo. App. W.D. 1979); State v. Winfrey, 337 S.W.3d 1, 10 (Mo. banc 2011); Gamble, 379 S.W.3d at 206.

Excluding this evidence may be warranted, for example, when the evidence is that a person has told a lie on an irrelevant issue that is remote in time or subject because it would seem to have little value in determining the witness's character...