EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS [FED. R. RULE 608]
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. FED. R. EVID. Rule 608(a).
See U.S. v. Shaw, 829 F.2d 714 (9th Cir. 1987) [holding that an instruction that the jury should examine the testimony of a witness with great caution cured the error created by the prosecutor’s opening statement in which he vouched for the witness’ truthfulness].
SPECIFIC INSTANCES OF CONDUCT
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his 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. FED. R. EVID. Rule 608(b).
Although any witness places his character for truthfulness in issue when he takes the stand, the giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility. U.S. v. Cluck, 544 F.2d 195 (5th Cir. 1976) [reversible error to attack witness’ credibility by extrinsic evidence of prior arrest that has not resulted in conviction];
U.S. v. Park, 525 F.2d 1279 (5th Cir. 1976) [ Rule 608(b) not permit cross-examination of defense witness, who testified defendant had not stolen item charged, regarding suspicious air conditioner shipments and pay-offs to the accused]; U.S. v. Alvarado, 519 F.2d 1133 (5th Cir. 1975), cert. denied, 424 U.S. 1073 (1976) [trial court held to have properly precluded question of prosecution witnesses in marijuana trial regarding their possible prostitution and homosexuality [even though offered to show bias and motive to testify for government] on grounds same was too speculative];
U.S. v. Banks, 520 F.2d 627 (7th Cir. 1975); U.S. v. Wood, 550 F.2d 435 (9th Cir. 1977) [testimony of Mexican police officer that defendant was wanted in Mexico for auto theft was inadmissible even though it was contrary to defendant’s own testimony]; U.S. v. Dinitiz, 538 F.2d 1214, 1224 (5th Cir. 1976) (en banc) [must articulate theory of admissibility]; U.S. v. Curry, 512 F.2d 1299 (4th Cir. 1975), cert. denied, 423 U.S. 832 (1975) [ruling as to “have-you-heards”].
Vigorous cross-examination and/or contradiction by other evidence in the case does not constitute attack of witness’ character for truthfulness as predicate for admitting evidence of his truthful character, particularly testimony as to favorable polygraph results already excluded under Rule 403. U.S. v. Thomas, 768 F.2d 611 (5th Cir. 1985).
But see U.S. v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987) [defendant may impeach government witness by cross-examining him about specific instances of conduct not resulting in conviction if conduct is probative of witness’ character for truthfulness or untruthfulness].
IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME [FED. R. EVID. RULE 609]
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime:
- Was punishable by death or imprisonment in excess of one year
…and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or
- Involved dishonesty or false statement, regardless of the
The Supreme Court has held that, except for criminal defendants (and perhaps defense witnesses), Rule 609(a)(1) requires a judge to permit impeachment of witnesses (including prosecution witnesses in a criminal case) without regard to any resulting unfair prejudice to the witness or the party offering the testimony. Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S. Ct. 1981, 104 L.Ed.2d 557 (1989).
REMOTENESS [FED. R. EVID. RULE 609(b)]
A conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction, or release from confinement whichever is later. However, upon notice and a fair opportunity to contest its admission the court may admit same where it determines that its probative value outweighs its prejudicial effect.
See U.S. v. Feliz, 867 F.2d 1068 (8th Cir. 1989) [no “exceptional circumstances” existed to overcome “rebuttable presumption” against admissibility of state convictions].
Entirely separate from these considerations precluding admission of prior convictions, the defendant may be able to exclude same because of prosecutions assurances of non-use regardless of the particulars of the assurances [prosecutor promised not to use to impeach court held same could not be used to show motive or intent]. See: U.S. v. Shapiro, 879 F.2d 468 (9th Cir. 1989)[Government’s breach of stipulation constituted reversible error as Government stated would not offer evidence of defendant’s prior conviction or cross examine him as to that conviction].
FINALITY OF CONVICTION [FED. R. EVID. RULE 609(c)]
Pendency of appeal does not render underlying conviction inadmissible for impeachment purposes.
In Texas, only final convictions, not on appeal, are admissible for impeachment purposes. Cf. Poore v. State, 524 SW2d 294 (Tex.Cr.App. 1975) [stating that burden on party offering the witness to show conviction not final].
FED. R. EVID. Rule 609(e) provides that the “pendency of an appeal …does not render evidence of a conviction inadmissible.” U.S. v. Rose, 526 F.2d 745 (8th Cir.), cert. denied, 430 U.S. 908 (1977).
DETAILS OF OFFENSE ARE INADMISSIBLE
Tucker v. U.S., 409 F.2d 1291 (5th Cir. 1969); U.S. v. Bray, 445 F.2d 178, 182 (5th Cir.),
cert. denied, 404 U.S. 1002 (1971).
Guilty pleas of Co-Conspirators are only Admissible to show-those co-conspirators credibility admitting instruction must be given to confine what a jury may consider co-conspirator’s guilty pleas to aid in determining the credibility of the co-conspirator that entered a plea. These guilty pleas may not be considered as substantive evidence of guilt. See, e.g., U.S. v. Dunn, 841 F.2d 1026 (10th Cir. 1988); U.S. v. Smith, 806 F.2d 971, 974 (10th Cir. 1986); U.S. v. Baez, 703
F.2d 453, 455 (10th Cir. 1983). There is a preference to caution the jury after each co-conspirator testifies. U.S. v. Dunn, 841 F.2d 1026 (10th Cir. 1026).
EFFECT OF PARDON, ANNULMENT OR CERTIFICATION OF REHABILITATION [FED. R. EVID. Rule 609(c)]
DISTINCTION BETWEEN STATE AND FEDERAL
In Texas, if the sentence was suspended and then set aside or probation was granted and the term was successfully completed then the conviction is not admissible for impeachment purposes.
However, TEX. R. EVID. 609(c)(3) provides that a pardon does not render a prior conviction inadmissible for impeachment purposes, Jones v. State, 147 SW2d 508 (Tex.Cr.App. 1941); unless such pardon is premised upon proof of innocence, Logan v. State, 448 SW2d 462 (Tex.Cr.App. 1969).
FED. R. EVID. Rule 609(c) provides that a prior conviction is not admissible for impeachment purposes where:
“(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure …and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”
U.S. v. Wiggins, 566 F.2d 944 (5th Cir. 1978) [defendant apparently has obligation of showing that his release [e.g. from “half-way house”]”…amounted to a finding of rehabilitation”].