Evidence - Rule 608(b) – Impeachment Through Prior Bad Acts

United States v. Abair, 746 F.3d 260 (7th Cir. 2014)

The prosecutor improperly cross-examined the defendant in a manner that assumed her culpability for false statements on a tax return and on a student financial aid application. This was improper Rule 608(b) impeachment. When the defendant denied making the false statement, which should have concluded the Rule 608(b) inquiry, the prosecutor pressed on, assuming the defendant’s guilt of the false statement without sufficient foundation. The government failed to offer sufficient reason to believe that the tax return and financial aid application had any bearing on the defendant’s truthfulness.

United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014)

The defense sought to introduce evidence to impeach the testimony of a police officer who had participated in undercover activities that involving luring the defendant (a police officer) into corrupt efforts to provide security for a drug deal. The evidence that the defense proffered involved other efforts of the undercover officer to lure police to engage in corrupt activities. This testimony was offered to support the entrapment defense. The trial court excluded the evidence pursuant to Rule 608(b), on the theory that extrinsic acts of misconduct on the part of a witness are not admissible if the evidence is offered to impeach the credibility of the witness. The First Circuit reversed: Rule 608(b) only limits extrinsic evidence that is offered for the sole purpose of attacking the character of the witness. Rule 608(b) does not limit the defendant’s right to offer evidence that impeaches the witness for bias, or prior inconsistent statements, or to impeach his trial testimony. Quoting from United States v. Abel, 469 U.S. 45 (1984), the First Circuit wrote, “It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar.”

United States v. Woodard, 699 F.3d 1188 (10th Cir. 2012)

The trial curt erred in barring the defendant from cross-examining a law enforcement officer about a prior judge’s determination that the officer was not credible. This method of impeachment is permitted under Rule 608(b). The factors the cout should consider in exercising his discretion are as follows: (1) whether the prior finding involved a determination of the officer’s credibility generally, or just in that case; (2) whether the prior testimony involved a subject matter similar to the subject matter in the instant case; (3) whether the prior “lie” was in a judicial proceeding or some othe forum; (4) whether the prior lie was about a significant matter; (5) how much time had elapsed between the two proceedings; (6) whether the witness had a motive to lie in the prior proceeding and whether the same motive existed in this proceeding; (7) whether any explanation offered by the witness in the prior proceeding was plausible. The holding in this case is not limited to prior testimony of law enforcement officers, but applies to any witness.

United States v. White, 692 F.3d 235 (2d Cir. 2012)

Based on Cedeno, which was decided after the trial was held in this case, the Second Circuit held that it was reversible error to exclude evidence of a prior judicial finding that a government witness was not credible. The prior judicial finding involved the law enforcement officer’s testimony at a suppression hearing which the judge, in that case, refused to credit. The appellate court also held that excluding evidence of the government’s initial charging decision was also reversible error. The defendant was an occupant of a vehicle with four women. Three guns were found in the car. One of the guns was allegedly found in the defendant’s pocket. The women, however, were initially charged with possessing all the guns, including the gun allegedly found in the defendant’s pocket. Subsequently, the government changed its charging decision. The appellate court held that the defendant should have been permitted to introduce evidence about the initial arrest of the women for that gun.

Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012)

The defendant was charged with raping his ex-girlfriend. He sought to introduce evidence of numerous false allegations of rape (including the testimony of police officers who had responded to earlier claims of rape). The state court excluded this evidence. In part, the exclusion was based on the defendant’s failure to comply with a state law requiring pretrial notice of the intent to introduce prior false allegation evidence. See also Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009). THE SUPREME COURT REVERSED in Nevada v. Jackson, 133 S. Ct. 1990 (2013). The Court held that the Nevada rule of evidence (comparable to Rule 608(b) FRE) that barred extrinsic evidence of a witness’s prior acts of dishonesty was not unconstitutional. The Court also noted that the state rule also permitted such evidence of prior false allegations if the defendant provided pretrial notice, a rule that the Court held was properly enforced in the state courts.

United States v. Cedeno, 644 F.3d 79 (2d Cir. 2011)

The trial court erred – though it was harmless error – in barring the defense from questioning a prosecution witness about a prior judicial finding that the witness was not credible. The witness’s prior testimony can be viewed as prior conduct that comes within the scope of Rule 608(b). See also, United States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983).

United States v. Ramirez, 609 F.3d 495 (2d Cir. 2010)

Generally, Rule 608(b) provides that impeachment by questioning a witness about a prior bad act can only be accomplished by means of cross-examination and extrinsic evidence is not permitted. In this case, the Second Circuit notes an exception to this rule: if the witness, on direct testifies to some fact (“I never previously dealt in drugs”), the opposing party may introduce evidence to contradict the testimony of the witness. This is known as “impeachment by contradiction.” This doctrine is not so clearly applicable in a situation where a defendant, on cross-examination, asserts a fact that the government then seeks to disprove through extrinsic evidence. Noting that the rule is not clear in this situation, the Second Circuit holds that the defendant in this case, during cross-examination, did not make an assertion that deserved rebuttal through extrinsic evidence.

United States v. McGee, 408 F.3d 966 (7th Cir. 2005)

The defendant testified at trial and on cross examination, he stated that he did not routinely lie to people to get out of trouble. The prosecution then played a taped phone call (made at the jail where he was held) between the defendant and his employer during which the defendant made up an elaborate lie about his absence from work. This violated the provision in Rule 608(b) which bars the use of extrinsic evidence. The tape was not admissible as a Rule 613 prior inconsistent statement, because the tape was not inconsistent with specific trial testimony; rather, it was offered to prove the defendant’s lack of credibility, that is, Rule 608(b) other bad act impeachment evidence. Harmless error.

United States v. Dawson, 434 F.3d 956 (7th Cir. 2006)

The defense sought to cross-examine a witness by making reference to another judge’s credibility finding regarding the witness’s denial of having committed a prior bad act. The government sought to bar this cross-examination on the theory that it amounted to introducing extrinsic evidence of the witness’s prior bad act. The Seventh Circuit disagreed and held that this form of cross-examination was not barred by Rule 608(b)’s no extrinsic evidence rule.

United States v. DeSantis, 134 F.3d 760 (6th Cir. 1998)

The defendant was charged with fraud offenses. He was asked during his testimony about why a liquor license was revoked. He answered in a way that prompted the prosecutor to request that he read the state court of appeals decision revoking his license. This was error. While Rule 608(b) permits a party to question a witness about prior bad acts, the Rule does not allow extrinsic evidence of the prior misconduct. In this case, the state court of appeals decision amounted to extrinsic evidence of the bad act. The fact that the court of appeals decision was not actually admitted in evidence is not relevant. Requiring the defendant to read the decision while on the witness stand was error.

United States v. Sullivan, 803 F.2d 87 (3rd Cir. 1986)

The prosecutor was permitted to cross-examine a defendant about other bad acts not amounting to criminal convictions for the purpose of impeachment. Specifically, the witness was asked about inaccuracies in his federal income tax returns and financial disclosure statements. The Sixth Circuit holds that credibility of the witness/defendant was crucial to the case and the government was permitted to test his credibility with this other evidence of misconduct relating to truthfulness. Presumably, what’s good for the goose is good for the gander.

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)

Just prior to trial, the government alerted the defense that an informant had killed two people several years earlier, but had never been charged with a crime. The defense learned that the informant had in fact pled guilty to two counts of manslaughter and asked the court to permit the defense additional time to determine the background, and also asked to be permitted to ask the informant why he lied to the DEA about his background. Both requests were denied by the trial court. The Ninth Circuit reversed. “We expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery (by informants) including turning over, as Giglio requires, all material information casting a shadow on an informant’s credibility.” The defendant should be permitted to question the informant, pursuant to Rule 608(b), about his lying to the DEA regarding his criminal record.

United States v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987)

The defendant may impeach a government witness by cross-examining him about specific instances of conduct not resulting in conviction if the conduct is probative of the witness’ character, truthfulness or untruthfulness.