In a civil trial for negligence, the plaintiff's attorney calls a witness to testify. On direct examination, the witness testifies about the events leading up to the accident. On cross-examination, the defendant's attorney asks the witness, "Isn't it true that you were fired from your last job for embezzling funds?" The plaintiff's attorney objects. How should the court rule?
- AOverrule the objection, as the question is relevant to the witness's character for truthfulness.
- BSustain the objection, as the question is unfairly prejudicial under FRE 403.
- COverrule the objection, as embezzlement is a crime involving dishonesty.
- DSustain the objection, as specific instances of conduct are generally not admissible to attack a witness's character for truthfulness.
Show answer & explanationAnswer & explanation
Correct answer: D. Sustain the objection, as specific instances of conduct are generally not admissible to attack a witness's character for truthfulness.
Under FRE 608(b), specific instances of a witness's conduct (other than a criminal conviction under FRE 609) are generally not admissible by extrinsic evidence to attack or support the witness's character for truthfulness. However, the court may allow them to be inquired into on cross-examination if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness has testified about. Embezzlement is certainly probative of untruthfulness. The key is that the question must be asked on cross-examination and cannot be proven by extrinsic evidence. The question itself is proper, but the objection implies the question is improper, which it is not if asked during cross-examination.
Why the other options are wrong
- A. This is the correct ruling. Under FRE 608(b), specific instances of conduct that are probative of a witness's character for truthfulness or untruthfulness may be inquired into on cross-examination. Embezzlement directly relates to untruthfulness.
- B. While potentially prejudicial, FRE 608(b) allows for such inquiry on cross-examination. The balancing test of FRE 403 still applies, but courts often allow such questions if they are highly probative of truthfulness.
- C. While embezzlement is a crime involving dishonesty, this question is about a *prior bad act* (being fired for it), not a *conviction*. FRE 609 governs convictions, while FRE 608(b) governs prior bad acts not resulting in conviction. The distinction is crucial.
Specific Instances of Conduct (FRE 608(b))
Specific instances of a witness's conduct, for the purpose of attacking or supporting the witness's character for truthfulness, are generally not admissible by extrinsic evidence. However, the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness has testified about.
- No extrinsic evidence for specific instances of conduct (unless conviction under FRE 609).
- Can be inquired into on cross-examination.
- Must be probative of truthfulness/untruthfulness.
- Court retains discretion under FRE 403.
Memory trick: Credibility: 'C.H.A.R.A.C.T.E.R. T.R.U.T.H.' (or lack thereof)