Cross-Examination to Reveal Untruthful Character of Witness (FRE 404(a)(1) & 608(b)(1)) Flashcards
FRE 404(a)(1): When is Character Evidence inadmissible against a person/witness?
Character Evidence–i.e., evidence of a person’s character or character trait–is NOT ADMISSIBLE to prove that, on a particular occasion, the witness acted in accordance with that character or trait.
FRE 404(a)(3): Under what FREs is character evidence admissible?
Evidence of a witness’s character is admissible under FRE 607, 608, and 609.
FRE 608(b)(1): Is Extrinsic Evidence admissible to prove specific instances of a witness’s conduct for truthfulness or untruthfulness?
Extrinsic evidence is NOT admissible to prove specific instances of a witness’s conduct to attack or support the witness’s character for truthfulness.
FRE 608(b)(1): When may a party ask a witness about specific instances of conduct to suggest a witness’s character for untruthfulness?
The court MAY allow a party to inquire about specific instances of conduct on CROSS-EXAMINATION to suggest a witness’s general character of untruthfulness.
FRE 608(b)(1): Is there a limit on the types of “specific instances of conduct” the cross-examining attorney can ask about?
YES–the Attorney MUST limit their inquiry to specific instances that are “probative of the witness’s character for truthfulness or untruthfulness–as a re-enforcement of the general rule of relevance, the attorney CANNOT probe other aspects of the witness’s character, such as drunkenness, messiness, or meanness.
FRE 608(b)(1): Is the Trial Judge REQUIRED to let the cross-examining attorney ask any and all questions inquiring about the witness’s “specific instances of untruthful conduct?”
NO–the Judge has the DISCRETION to prevent questions cross-examining a witness about specific acts that reveal untruthful character, in line with the freedom Trial Judges have to exclude unfairly prejudicial evidence under FRE 403 and their authority to control the presentation of courtroom testimony under FRE 611.
FRE 608(b)(1): Can the cross-examining attorney introduce other evidence to prove specific instances of conduct suggesting the witness’s general untruthful character?
NO–If the attorney cross-examines the witness about specific instances of conduct suggesting their general untruthful character, the attorney MUST accept the witness’s answer and move on–the attorney CANNOT introduce other evidence outside of the answer given by the witness being cross-examined–e.g., disciplinary reports or testimony from other witnesses.
