Conn. Code. Evid. 6-6
Amended Dec. 14, 2017, to take effect Feb. 1, 2018.
COMMENTARY Section 4-4(a) (3) provides for the admission of evidence addressing the character of a witness for truthfulness or untruthfulness to support or impeach the credibility of such witness. Section 6-6 addresses when such evidence is admissible and the appropriate methods of proof. (a) Opinion and reputation evidence of character. The first sentence of subsection (a) reflects common law. See, e.g., State v. Gould, 241 Conn. 1, 19, 695 A.2d 1022 (1997); State v. Gelinas, 160 Conn. 366, 367-68, 279 A.2d 552 (1971); State v. Pettersen, 17 Conn. App. 174, 181, 551 A.2d 763 (1988). Evidence admitted under subsection (a) must relate to the witness' character for truthfulness and thus general character evidence is inadmissible. See, e.g., Dore v. Babcock, 74 Conn. 425, 429-30, 50 A. 1016 (1902). The second sentence of subsection (a) also adopts common law. See State v. Ward, 49 Conn. 429, 442 (1881); Rogers v. Moore, 10 Conn. 13, 16-17 (1833); see also State v. Suckley, 26 Conn. App. 65, 72, 597 A.2d 1285 (1991). A foundation establishing personal contacts with the witness or knowledge of the witness' reputation in the community is a prerequisite to the introduction of opinion or reputation testimony bearing on a witness' character for truthfulness. See, e.g., State v. Gould, supra, 241 Conn. 19-20; State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). Whether an adequate foundation has been laid is a matter within the discretion of the court. E.g., State v. Gould, supra, 19; State v. George, supra, 368; see Section 1-3(a). (b) Specific instances of conduct. Under subdivision (1), a witness may be asked about his or her specific instances of conduct that, while not resulting in criminal conviction, are probative of the witness' character for untruthfulness. See, e.g., State v. Chance, 236 Conn. 31, 60, 671 A.2d 323 (1996); State v. Roma, 199 Conn. 110, 116-17, 513 A.2d 116 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964). Such inquiries must be made in good faith. See State v. Chance, supra, 60; Marsh v. Washburn, 11 Conn. App. 447, 452-53, 528 A.2d 382 (1987). The misconduct evidence sought to be admitted must be probative of the witness' character for untruthfulness, not merely general bad character. E.g., Demers v. State, 209 Conn. 143, 156, 547 A.2d 28 (1988); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961). Impeachment through the use of specific instance evidence under subdivision (1) is committed to the trial court's discretionary authority. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). The trial court must, however, exercise its discretionary authority by determining whether the specific instance evidence is probative of the witness' character for untruthfulness, and whether its probative value is outweighed by any of the Section 4-3 balancing factors. State v. Martin, 201 Conn. 74, 88-89, 513 A.2d 116 (1986); see Section 4-3. Inquiry into specific instances of conduct bearing on the witness' character for untruthfulness is not limited to cross-examination; such inquiry may be initiated on direct examination, redirect or recross. See Vogel v. Sylvester, supra, 148 Conn. 675 (direct examination). Although inquiry often will occur during cross-examination, subsection (b) contemplates inquiry on direct or redirect examination when, for example, a calling party impeaches its own witness pursuant to Section 6-4, or anticipates impeachment by explaining the witness' untruthful conduct or portraying it in a favorable light. Subdivision (1) only covers inquiries into specific instances of conduct bearing on a witness' character for untruthfulness. It does not cover inquiries into conduct relating to a witness' character for truthfulness, inasmuch as prior cases addressing the issue have been limited to the former situation. See, e.g., State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812 (1985). Nothing in subsection (b) precludes a court, in its discretion, from allowing inquiries into specific instances of conduct reflecting a witness' character for truthfulness when the admissibility of such evidence is not precluded under this or other provisions of the Code. Subdivision (2) recognizes well settled law. E.g., State v. Chance, supra, 236 Conn. 60; State v. Martin, supra, 201 Conn. 86; Shailer v. Bullock, 78 Conn. 65, 69, 70, 61 A. 65 (1905). The effect of subdivision (2) is that the examiner must introduce the witness' untruthful conduct solely through examination of the witness himself or herself. State v. Chance, supra, 61; State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). (c) Inquiry of character witness. Subsection (c) provides a means by which the basis of a character witness' testimony may be explored and is consistent with common law. State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); see State v. DeAngelis, 200 Conn. 224, 236-37, 511 A.2d 310 (1986); State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976). Subsection (c) is a particularized application of Section 4-4(c), which authorizes a cross-examiner to ask a character witness about specific instances of conduct that relate to a particular character trait of the person about which the witness previously testified. As with subsection (b), subsection (c) requires that inquiries be made in good faith. The cross-examiner's function in asking the character witness about the principal witness' truthful or untruthful conduct is not to prove that the conduct did in fact occur; State v. Turcio, 178 Conn. 116, 126, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); or to support or attack the principal witness' character for truthfulness; State v. McGraw, supra, 204 Conn. 447; but to test the soundness of the character witness' testimony "by ascertaining [the character witness'] good faith, his [or her] source and amount of information and his [or her] accuracy.'' State v. Martin, supra, 170 Conn. 165. Because extrinsic evidence of untruthful or truthful conduct is inadmissible to support or attack a witness' character for truthfulness; e.g., State v. McGraw, supra, 204 Conn. 446; questions directed to the character witness on cross-examination concerning the principal witness' conduct should not embrace any details surrounding the conduct. State v. Martin, supra, 170 Conn. 165; accord State v. Turcio, supra, 178 Conn. 126. The accepted practice is to ask the character witness whether he or she knows or has heard of the principal witness' truthful or untruthful conduct. See State v. McGraw, supra, 447.