![]() Having said that, the Rule is arbitrary in defining which acts are sufficient to show propensity. And of course 608(b) evidence may be subject to further scrutiny under Rule 403, although that should be tempered with the command of Rule 611 that judges “protect witnesses from harassment or undue embarrassment.” By dint of this language, some embarrassment is inherent in testifying and is “due.” All of us have told a lie or done something dishonest in nature but the rule envisions more – an act that is a proxy for or measure of having a character for being dishonest, a general propensity to lie. It recognizes the distinction between acts, even dishonest ones, and acts that “reflect on the witness’s character for truthfulness or untruthfulness…” 4-608 Weinstein’s Federal Evidence § 608.22. The line was that between “those matters…which merely excite prejudice against the witness or tend to humiliate him or wound his feelings, and those…calculated in an important and material respect to influence the credit to be given to his testimony.”Īrguably, Rule 608(b) is consistent with this antecedent common law approach. As described in the late 1800s, a witness “may be interrogated upon specific acts and transactions of his past life…if they are not too remote in time and clearly relate to the credit of the witness in an important and material respect…” Terr. ![]() The Rule’s genesis can be found in a common law tradition of allowing witnesses to be impeached with at least some types of misconduct. So what does the Rule provide? At its core, “specific instances of a witness’s conduct… may, on cross-examination,…be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness” ![]() As of August, 2015, only 382 reported decisions were found in a national LEXIS search using the parameters “608(b) w/12 specific w/5 conduct w/12 character.” Available in many jurisdictions as a tool for attacking witness credibility, its limited role in the litigator’s toolkit is confirmed in evidence lectures, when practicing lawyers and judges show unfamiliarity with the rule and arguably by the paucity of cases mentioning its language. The hacking of the website resulted in the release of the names of tens of millions of subscribers – individuals who joined the website with the ability and apparently the intent to seek out a partner for an adulterous encounter, be it one-time or ongoing.Īnd if one of those individuals were to now be a witness in a trial, would the act of registering an interest in or seeking out an adulterous relationship be admissible as an attack on credibility? To answer the question requires a parsing of the language, theoretical underpinnings and application of Federal Rule of Evidence 608(b).īefore discussing the Rule, practitioners need to be chided for its apparent underuse. The Ashley Madison website self-describes as “the most famous name in infidelity and married dating.” (last visited August 27, 2015). ![]()
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