Rule 608 EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS

• Jurisdiction: Colorado

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness other than conviction of crime as provided in §13-90-101, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

(Federal Rule Identical.)

Source: (b) amended September 29, 2005, effective January 1, 2006.

RECENT ANNOTATIONS

Prosecutor asking investigating detective's opinion on consistency of another witness's testimony and their witness statement was improper but did not rise to the level of plain error. Because the question was not "flagrant or glaringly or tremendously improper", the detective did not testify about whether the witness had testified truthfully, and the detective's equivocal response mitigated any prejudice, the testimony did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Bobian, 2019 COA 183, 461 P.3d 643.

ANNOTATION

Law reviews. For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 277 (1979). For article, "Impeachment", see 22 Colo. Law. 1207 (1993). For article, "C.R.E. 608(b): Challenging Witness Credibility", see 29 Colo. Law. 99 (July 2000). For article, "Admissibility of Testimony Concerning the Truthfulness or Untruthfulness of a Witness", see 35 Colo. Law. 37 (Dec. 2006).

Common-law rule. Prior to the adoption of the Colorado rules of evidence, Colorado adhered to the general rule that evidence of misdeeds was inadmissible for the purpose of attacking a witness's character in regard to his truthfulness. People v. Saldana, 670 P.2d 14 (Colo. App. 1983).

While this rule allows for extrinsic evidence under certain circumstances, the adoption of this rule has not materially altered the previously established general rule. People v. Saldana, 670 P.2d 14 (Colo. App. 1983).

Right to confront and cross-examine witnesses not absolute. An accused's constitutional right to confront and to cross-examine witnesses is not absolute and may be limited to accommodate other legitimate interests in the criminal trial process. People v. Cole, 654 P.2d 830 (Colo. 1982).

Trial court properly limited cross-examination where answers sought by defendant involved cumulative or collateral testimony concerning co-defendant's credibility and were only marginally related to commission of charged crime. People v. Ray, 109 P.3d 996 (Colo. App. 2004).

The trial court did not abuse its discretion in limiting the cross-examination related to a witness's felony conviction. The record shows the jury had ample information about the felony conviction and background to assess the witness's credibility. People v. Lane, 2014 COA 48, 343 P.3d 1019.

Bias on the part of a witness is a state of mind and only those demands which can influence the mind at the moment of testifying are relevant to a demonstration of bias. People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973).

Impeachment inquiry directed to witness's credibility, not character. In impeaching a witness, the inquiry ought to be directed to the witness's credibility rather than to his moral character. People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972).

Rule applies only to the admissibility of character evidence. Proffered evidence of whether a witness was testifying truthfully in the case did not constitute a general character attack on witness. People v. Hall, 107 P.3d 1073 (Colo. App. 2004).

Cross-examination held to be proper attack upon witness's credibility, not his character. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972).

The exclusion of proper opinion testimony is harmless where the defense can fully cross-examine the witness whose credibility was to be impeached, and where that witness's credibility was otherwise impeached through the testifying witness. People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff'd on other grounds, 2013 CO 57, 310 P.3d 58 (Colo. 2013).

Defendant who takes witness stand is subject to same tests of credibility as any other witness. People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973).

Trial court did not err by admitting extrinsic evidence of defendant's audiotaped statement to rebut his testimony. It is well established that evidence may be introduced that specifically contradicts a defendant's direct testimony. By making statements on redirect examination that contradicted his testimony during cross-examination, defendant opened the door to the extrinsic evidence to contradict his statements on cross-examination. People v. Thomas, 2014 COA 64, 345 P.3d 959.

Defendant may be examined on previous felony convictions. A defendant who elects to be a witness in his own behalf in a criminal case subjects his credibility to question, like any other witness, and he may therefore be examined on the matter of previous felony convictions. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973).

Nature of particular crime for which defendant was convicted. Although evidence of prior felony convictions is admissible to impeach a defendant who voluntarily takes the stand and testifies in his own behalf, such an inquiry is not confined to the mere fact of the conviction of some crime, but the nature or name of the particular crime of which the witness was convicted may be brought out. Mays v. People, 177 Colo. 92, 493 P.2d 4 (1972).

Where defendant testifies, motion to suppress prior conviction denied. The denial of the defendant's motion to suppress his prior felony conviction is proper where the defendant takes the...