Formalism Versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts That Have Not Resulted in a Conviction

• Publication year: 2022

48 Creighton L. Rev. 213. FORMALISM VERSUS PRAGMATISM IN EVIDENCE: RECONSIDERING THE ABSOLUTE BAN ON THE USE OF EXTRINSIC EVIDENCE TO PROVE IMPEACHING, UNTRUTHFUL ACTS THAT HAVE NOT RESULTED IN A CONVICTION

FORMALISM VERSUS PRAGMATISM IN EVIDENCE: RECONSIDERING THE ABSOLUTE BAN ON THE USE OF EXTRINSIC EVIDENCE TO PROVE IMPEACHING, UNTRUTHFUL ACTS THAT HAVE NOT RESULTED IN A CONVICTION

EDWARD J. IMWINKELRIED(fn*)

"The[r]e are 'good reason[s]' for limiting the use of extrinsic evidence, . . . and the [state] statute [upheld in this case] is akin to the widely accepted rule of evidence law that generally precludes the admission of evidence of specific instances of a witness' conduct to prove the witness' character for untruthfulness. See Fed.Rule Evid. 608(b). . . . The constitutional propriety of this rule cannot be seriously disputed."

-Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013).

There are three types of disputes that go to trial.(fn1) The first is a legal standard case.(fn2) For example, suppose that the police conduct a reverse sting operation and videotape all their interactions with an alleged drug trafficker. The videotape shows the accused initially agreeing to deliver a quantity of crack cocaine and later conveying the cocaine. However, the accused raises the defense of entrapment. The critical question is not the credibility of the evidence that the accused made the agreement or delivered the cocaine; given the videotape, the accused cannot defend on that basis. Nor is there a question as to the historical inferences to draw from the acts and statements shown on the videotape. That is often the crucial issue when a litigant relies on circumstantial evidence, and the battle is over which inferences to draw from the circumstances. In contrast, in this case the prosecution has direct evidence. In the final analysis in this hypothetical, the outcome turns on how the trier of fact decides to apply the legal definition of entrapment to the undisputed facts shown on the videotape.

The second kind of case that goes to trial is an historical inference dispute.(fn3) Here, the litigant relies on circumstantial evidence. Assume a suit against a school district. While they are being transported home in a school van late at night after an extracurricular activity, several students are injured when the van leaves the road and strikes a tree. There is no direct evidence available. The children were asleep in the back of the van. For her part, the driver suffers retrograde amnesia and cannot recall what happened at the time of the accident. However, the accident leaves physical evidence: the van's skidmarks, the extent of the damage to the tree, and the nature of the damage to the van. Accident reconstruction experts, familiar with the laws of physics, can analyze the circumstantial evidence and draw inferences in an effort to reconstruct the accident. The question is not whom to believe but rather which inferences to draw from the circumstantial evidence.

The third and final kind of case is a credibility dispute.(fn4) The victim of a crime identifies the accused as the perpetrator. However, the accused adamantly denies any involvement in the crime. The accused contends that the victim is either lying or mistaken. The resolution of this type of case turns on whom the trier of fact chooses to believe. Credibility disputes may be the most common type of dispute taken to trial.(fn5) At least in civil cases, trial judges can sometimes eliminate the need by disposing of the legal standards and historical inference disputes before trial. Under Federal Rule of Civil Procedure 56, civil litigants may move for summary judgment. If there is only one sensible way to apply the controlling legal standard to the facts in a case, the trial judge may grant summary judgment.(fn6) The judge may also do so when there is only one rational inference to be drawn from the circumstantial evidence in the case.(fn7) However, the judge may not grant summary judgment on the ground that he or she finds one side's witnesses more credible than the other's.(fn8) That outcome is understandable, since in most cases a judge ruling on a summary judgment motion has before him or her only the litigants' written affidavits or declarations;(fn9) the judge does not have the benefit of live testimony that would enable the judge to more fully assess the witnesses' credibility.

When a credibility dispute proceeds to trial, the trier of fact may consider several types of information in resolving the dispute, such as the witnesses' demeanor.(fn10) In addition, the litigants will present the trier with evidence impeaching the opposing witnesses' credibility.(fn11) Evidence law makes a large number of impeachment techniques available to the litigants.(fn12) Some of the techniques target the witness's testimony on the historical merits. By way of example, evidence law allows a litigant to impeach a witness by showing that: (1) the witness made a prior statement inconsistent with his or her trial testimony,(fn13) (2) another witness has contradicted the witness's trial testimony,(fn14) and (3) the witness has a bias that could influence one's testimony.(fn15) However, evidence law also permits a litigant to employ essentially ad hominem techniques that target the witness. This category of impeachment techniques includes testimony showing that: (1) the witness has a deficiency in an element of competency such as perceptual ability,(fn16) (2) the witness has a character trait for untruthfulness,(fn17) (3) the witness has been convicted of a crime,(fn18) and (4) the witness has committed an act which evidences untruthfulness, even if the act has not yet resulted in a conviction.(fn19)

There are two ways in which a litigant may press one of these impeachment attacks.(fn20) The first method is intrinsic impeachment, that is, cross-examination.(fn21) For example, the cross-examiner may ask whether the witness has suffered a prior conviction or was intoxicated at the time the witness observed the events described on direct examination. The second method is extrinsic impeachment.(fn22) During the plaintiff's case-in-chief, suppose the witness falsely denied a prior conviction when questioned. During the defense case-in-chief, the defense attorney could present a self-authenticating(fn23) certified copy of the judgment of conviction.(fn24) Or assume that the same witness falsely denied being drunk when he witnessed the traffic accident. Again, during the defense case-in-chief, the defense attorney could call the witness's spouse to establish that the witness was indeed intoxicated.(fn25)

With one exception, if a witness falsely denies an impeaching fact during cross-examination, the cross-examiner may sometimes follow up and expose the perjury by later presenting extrinsic evidence proving the impeaching fact. In some cases, an impeachment technique involves extrinsic evidence, for example, impeachment by proof that the witness failed a polygraph examination.(fn26) The witness cannot administer the polygraph test to himself or herself. Once the jurisdiction has made the policy decision to permit this impeachment technique, it must allow the use of extrinsic impeaching evidence; there is no other way to establish the facts of the administration of the test and the test results. In the case of all other impeachment techniques, with one exception, the litigant may resort to extrinsic evidence when the impeaching fact is imporant. For instance, if a witness denies a prior inconsistent statement, the litigant may introduce extrinsic evidence when the judge concludes that the statement will shed important light on the witness's credibility.(fn27)

Those generalizations not only hold true at common law, but they are also valid under the Federal Rules of Evidence. Article VI of the Federal Rules contains most of the provisions governing impeachment techniques, and in that statutory scheme, the primary restraint on the use of extrinsic evidence to prove the impeaching fact is Federal Rule 403. Rule 403 is the provision empowering a trial judge in his or her discretion to exclude logically relevant evidence when the judge concludes the attendant probative dangers, such as undue time consumption, substantially outweigh the probative value of the evidence.(fn28) With one exception, none of these impeachment techniques is subject to a rigid ban on extrinsic evidence.

That notable exception is restyled Federal Rule of Evidence 608(b) which states:

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack . . . the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for . . . untruthfulness of . . . the witness . . . .

The meaning of the statutory language seems plain, and for the most part, both the Supreme Court and the lower courts have taken a textualist, plain meaning approach to the construction of the Federal Rules of Evidence.(fn29) Given the unequivocal wording of Rule 608(b), one court held that confronting the witness with even a "few lines" from a judicial opinion finding the witness guilty of civil fraud violated the ban on extrinsic evidence.(fn30)

Moreover, the Advisory Committee Note accompanying the 2003 amendment to Rule 608 reinforces the plain meaning...