Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(b) Exclude?-imwinkelried vs. Rothstein

• Publication year: 2022

49 Creighton L. Rev. 121. JUST WHAT EVIDENCE OF WITNESS MISDEEDS DOES FEDERAL EVIDENCE RULE 608(b) EXCLUDE?-IMWINKELRIED vs. ROTHSTEIN

JUST WHAT EVIDENCE OF WITNESS MISDEEDS DOES FEDERAL EVIDENCE RULE 608(b) EXCLUDE?-IMWINKELRIED vs. ROTHSTEIN

Paul F. Rothstein(fn*)

I. INTRODUCTION

Professor Edward Imwinkelried, one of the country's most renowned Evidence scholars, in a recent article in this journal,(fn1) perceptively identifies three specific examples of evidence of a witness's prior unconvicted-for misconduct which he correctly believes should be admissible to impeach the witness's credibility in the discretion of the trial judge:

1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude(fn2)) which the witness will not admit to during cross examination;

2. Documentary evidence proving a misdeed of a testifying witness clearly evincing the witness's lack of credibility, where the witness himself on cross exam could authenticate the document so it could be used conveniently and expeditiously without undue time consumption; and

3. Evidence of the result in a civil action, for example where the witness was a party and an adverse verdict clearly establishes his position was fabricated, or where he was only a witness but the verdict makes it clear the trier of fact rejected his contention as fabricated.

I agree with Professor Imwinkelried that these can be powerful pieces of evidence and should be admissible in the judge's discretion upon consideration of such factors as probative value on the issue of the witness's credibility, time consumption, and prejudice. But Professor Imwinkelried and I disagree as to whether the literal language of Federal Rule of Evidence 608(b) bans them absolutely. Professor Im-winkelried believes it does, and therefore should be amended. I believe it does not and therefore does not require amendment.

II. THE ARGUMENT

Rule 608(b) bans evidence of a witness's unconvicted-for misdeeds if proving them involves using "extrinsic" evidence, no matter how powerfully probative of lying they are, how little time they would consume to present, and how little prejudice they might entail. "Extrinsic" (as opposed to "intrinsic") evidence is evidence adduced through means other than cross examination of the witness being impeached. For example, a misdeed is proved "extrinsically" if the way it is evidenced is by independently introducing other witnesses, documents, or recordings that attest to the witness's commission of the misdeed or provide details about it.(fn3)

Professor Imwinkelried implies his three numbered instances (above) are merely examples and that there are many other instances, too, where evidence of witness misdeeds demonstrating the witness's non-veracity should be discretionarily admissible even if extrinsically proved, but which Rule 608(b)'s blanket extrinsic evidence ban allows only on cross examination. His whole argument, however, hinges on the three examples. He cites cases in which he says courts have recognized the value of the kind of evidence in his examples and have found it necessary to violate the rule to let it in, and other cases where he says the courts have refused to do so even though it would be desirable to let the evidence in.(fn4)

It is my contention that it is only a misconstruction of Rule 608(b) that would preclude discretion to admit his three examples of evidence. Under a proper construction, the evidence is not excluded and the Rule therefore does not need revision. The courts that want to admit the evidence do not need to disregard the rule. The evidence can be admitted perfectly consistently with the rule. Further, Professor Imwinkelried has not convincingly shown that there is other deserving evidence outside of his three examples that is banned by the Rule.

A. THE THREE EXAMPLES ARE NOT REALLY RENDERED INADMISSIBLE BY THE RULE

Professor Imwinkelried's argument regarding the three examples relies on two misconceptions, though each has some support in previous (but misguided in my opinion) authority. The first misconception is that Rule 608 applies to all unconvicted-for misdeeds of a witness offered to impeach the witness's credibility whatever the theory of impeachment. In fact, the Rule only applies where the theory is showing a bad character regarding credibility. This first mistake is manifest in his example number one above, prior false allegations of rape against the present rape defendant.

The second misconception is this. He is under the misconception that even if proving the misdeed can be completely accomplished through cross examination, the evidence is still "extrinsic" and banned by the terms of Rule 608(b) if it has anything to do with a document or a previous judicial event. This applies to his example number two, documents acknowledged by the witness during cross examination, attesting to the prior misdeed, and his example number three, previous civil case events, adduced through the present cross examination.(fn5)

B. The Terms of Rule 608(b)

In pertinent part, Rule 608(b) provides:

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 . . . .

A few terms in the rule that are instrumental to our inquiry need further explaining: "Extrinsic" evidence is generally defined as evidence other than that adduced during cross examination of the witness being impeached. In other words, although the evidence is addressed to impeach the credibility of this witness, it is introduced through another witness, or through a document, a recording, or some other item introduced independently.(fn6) "Character for truthfulness or untruthfulness" means a proclivity of the witness to be truthful or untruthful that may surface in a variety of matters.(fn7)

Let us examine more closely the three evidence examples identified by Professor Imwinkelried that he alleges are absolutely excluded by a literal reading of Rule 606(b), to see if they really are so excluded.

C. PROFESSOR IMWINKELRIED'S EXAMPLE NUMBER ONE: EXTRINSIC EVIDENCE OF PRIOR CLEARLY FALSE ACCUSATIONS OF RAPE BY THE SAME COMPLAINING WITNESS AGAINST THE CURRENT RAPE DEFENDANT(fn8)

In this example the offered evidence consists of some kind of extrinsic evidence like testimony of another person or a record establishing the prior accusations and their falsity. In other words, the evidence is not just an inquiry and response on cross examination of the complaining witness (which would be called "intrinsic" evidence and which clearly would be allowed insofar as Rule 608(b) is concerned). The thing that allegedly makes the evidence inadmissible under 608(b) is its "extrinsic" nature-its "non-cross-exam" nature. If the evidence is confined just to cross examination, there is no conceivable problem posed by 608(b).

But, under a proper construction of Rule 608(b), this evidence, whether in the extrinsic or intrinsic form, would not be subject to Rule 608(b) at all! The prior incidents here (the prior false allegations of rape) are not offered as showing the witness has a general "character" for incredibility (the only kind of impeachment covered by Rule 608(b)), but rather are offered to show specifically that the complaining witness lies about rape by this accused-i.e. has a motive to "get" this defendant.(fn9) By its express terms, Rule 608(b) applies only when a "character" for incredibility is being shown.(fn10) Here the effort is more properly described as impeachment by showing a particular motive or bias.(fn11)

"Character" is a very general propensity consisting of a broad trait like "dishonesty," "untrustworthiness," "unreliability," "violence," etc. While we might say a complaining witness has an "untrustworthy character," we would be doing violence to language to say "the complaining witness has a character to falsely accuse Daniel Defendant of rape" although we might say "she has a propensity to do so." A specific propensity is different from a character-type propensity, which is a general propensity manifesting itself in a wide variety of circum-stances.(fn12) The impeachment of the witness here is not proceeding on a theory of a general character for untrustworthiness, which is all that is covered by Rule 608(b). It is rather proceeding along the lines of a specific propensity to accuse this specific defendant specifically of rape. The main Advisory Committee Note for Rule 608(b)(fn13) as well as many cases,(fn14) make clear that Rule 608(b)'s strictures-including the ban on extrinsic evidence-do not apply if the purpose of the offer of an incident of the witness's wrongdoing is not to show a general character for incredibility, but rather some other form of impeachment more specifically focused on the facts of the present case.(fn15)

It may even be that this prior-false-allegation evidence should not be deemed impeachment evidence at all, but rather substantive evidence, going directly to whether the rape occurred. In that event, it would not be subject to the ban on extrinsic evidence of Rule 608(b)...