From recent decisions of the Texas Court of Criminal Appeals
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Rule 608. Evidence of Character and Conduct of Witness
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presenting issue (Rule 608. Evidence of Character and Conduct of Witness)
- Nothing presented for review challenging cross examination of def with specific instances of misconduct for impeachment contrary to rule 608(b) where def made no trial objection. Perry v State (December 15, 2004, No. AP-74,591)
- Because of the distinct and different purposes served by Rule 608(b) and Rule 612(b), def's Rule 608(b) objection that “only final felony convictions may be used to impeach testimony” failed to articulate any kind of an objection under Rule 612(b). Dixon v State, 2 S.W.3d 263 (September 15, 1999)
- PDR reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997), on preservation of objection to impeachment, and on merits of allowing impeachment by proof of pending charges over objection based on rules 608(b) and 609. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)
- Def preserved for review issue of whether was error to allow state to impeach defense witness with questions about pending felony charges against witness, where def adopted objection* made by witness' attorney, asserting witness' privilege against self incrimination, pointing out the charges were pending and witness had not been convicted, which was suff to apprise trial court that def was relying on both TRCrE 608(b) and 609. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)
rules (Rule 608. Evidence of Character and Conduct of Witness)
- Rule 608(b) provides that a witness's credibility may not be impeached with specific instances of the witness's conduct other than a criminal conviction as provided in Rule 609(a). Nonetheless, the Confrontation Clause of the Sixth Amendment may require admission of evidence that Rule 608(b) would otherwise bar. Billodeau v State (February 11, 2009, PD-0969-07)
- The law of "bolstering" existed before Rules of Evidence were adopted. At one time, this term of art conveyed an objection that was uniformly recognized by the courts. As the law evolved, however, most evidentiary terms became codified in the Rules of Evidence. While the term "bolstering" is slowly dying as an objection on its face, it has not yet expired, despite the fact that the term itself failed to survive the adoption of the Rules. A fundamental problem with an objection to "bolstering" is its inherent ambiguity. "Bolstering" appears to have roots in several evidentiary rules. Bolstering has been acknowledged as an objection that contains the substance of Rules 608(a) and 613(c), and has been defined as "any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing 'to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.'" Thus, Rule 608(a), which allows opinion or reputation evidence as to the character of a party's own witness for truthfulness, but only after the witness's character for truthfulness has already been attacked by the opposing party, appears to be encompassed by the generic "bolstering" objection. Additionally, Rule 613(c) seems to be covered under the "bolstering" objection "to the extent it prevents the use of prior consistent statements of a witness for the sole purpose of enhancing his credibility." Rule 613(c) makes inadmissible any prior consistent statement of a witness which is consistent with the testimony, except as provided by Rule 801(e)(1)(B). This rule excludes prior consistent statements as substantive evidence, thus reiterating the principles of hearsay. Rivas v State (January 28, 2009, PD-1113-07)
- Communal reliability is only a factor in assessing the admissibility of character evidence in the form of reputation testimony, not opinion testimony. When one gives testimony regarding reputation, that testimony is based on the community's perception of the person in question. Opinion testimony, on the other hand, is based solely on the specific testifier's perception of the person in question. Sims v State (July 2, 2008, PD-1575-07)
- Both character evidence in the form of opinion testimony and extraneous-offense testimony may be admissible during trial, even if the opinion testimony is based on facts brought forth from the extraneous-offense testimony. Sims v State (July 2, 2008, PD-1575-07)
- Impeaching a witness with a prior inconsistent statement is not necessarily an attack on credibility that would allow rehabilitative evidence of character for truthfulness under Rule 608(a). Although rehabilitation may be permitted under 608(a), it is not automatic. Michael v State (October 3, 2007, PD-1611-05)
- There are five major forms of impeachment: two are specific, and three are nonspecific. The two specific forms are impeachment by prior inconsistent statements (also known as self-contradiction) and impeachment by another witness. The three non-specific forms are impeachment through bias or motive or interest, impeachment by highlighting testimonial defects, and impeachment by general credibility or lack of truthfulness. Specific impeachment is an attack on the accuracy of the specific testimony (i.e., the witness may normally be a truthteller, but she is wrong about X), while non-specific impeachment is an attack on the witness generally (the witness is a liar, therefore she is wrong about X). When a witness's credibility has been attacked by any one of the five forms of impeachment, the sponsoring party may rehabilitate the witness only in direct response to the attack. Generally, a witness's character for truthfulness may be rehabilitated with "good character" witnesses only when the witness's general character for truthfulness has been attacked. Michael v State (October 3, 2007, PD-1611-05)
- Impeachment by a prior inconsistent statement (or "self-contradiction") is normally just an attack on the witness's accuracy, not his character for truthfulness. There are circumstances, however, where the cross-examiner's intent and method clearly demonstrate that he is not merely attacking the conflict in the witness's testimony between one or more specific facts, but mounting a wholesale attack on the general credibility of the witness. If the inconsistent statement is used to show that the witness is of "dishonest character," then it follows that the opposing party should be allowed to rehabilitate this witness through testimony explaining that witness's character for truthfulness. Alternatively, if this testimony is used to show some other defect, then such evidence should not be allowed. The question for the trial judge is whether a reasonable juror would believe that a witness's character for truthfulness has been attacked by cross-examination, evidence from other witnesses, or statements of counsel (e.g., during voir dire or opening statements). Michael v State (October 3, 2007, PD-1611-05)
- While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Dixon v State, 2 S.W.3d 263 (September 15, 1999)
- Tex.R.Crim.Evid. 608(a) says how to impeach a witness’s general character for truthfulness. Rule 608(b) expressly bars impeaching a witness’s general character for truthfulness with specific acts of conduct “other than conviction of crime as provided in” Tex.R.Crim.Evid. 609. Dixon v State, 2 S.W.3d 263 (September 15, 1999)
- Rule 612(b) is different from Rule 608. Rule 608 addresses a witness’s general character for truthfulness. Rule 612(b) addresses a witness’s trustworthiness in the particular case because of some bias or interest. Dixon v State, 2 S.W.3d 263 (September 15, 1999)
- TRCrE 612 (now TRE 613) is a general rule that allows the parties to question a witness regarding a bias or interest, whereas Rule 608(b) is a specific rule relating to “specific” instances of conduct and Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction. General rules are not meant to supercede specific rules. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)
not error to exclude 608(b) (Rule 608. Evidence of Character and Conduct of Witness)
- It was not abuse of discretion not to allow def to cross-examine witness regarding his giving a false name after an arrest, and his shooting his stepfather, where neither alleged offense resulted in a conviction. No merit to contention they were admissible under rules 401 and 611(b), where rule 608 required exclusion. Martinez v State, 17 S.W.3d 677 (May 17, 2000)
- The Confrontation Clause does not require a special exception to the Rules of Evidence for sexual offenses. In instant case, it did not require admission of evidence of the complainant's prior false allegations of abuse against a person other than the defendant despite Rule 608(b)'s proscription against admitting specific instances of conduct. Court balanced probative value of the evidence offered against the risk of its admission. C/w testified that def forced c/w to perform oral sex on def. According to the testimony at trial, the events occurred when they were alone, so there were no other witnesses to corroborate either person's story; also, state had no additional evidence of def's guilt. Because the trial was a "swearing match," def had a heightened need to impeach c/w's credibility. But the excluded evidence would not have achieved that goal. Def attempted to introduce evidence that c/w had previously falsely accused his mother of physical abuse, but (1) the prior accusation was never shown to be false, and (2) the allegation that def's mother had physically abused him by throwing him against a washing machine had almost nothing in common with allegations of sexual abuse in instant offense. For these same reasons, the risk that this evidence would unduly prejudice and confuse the jury was high. Court therefore concluded that the Confrontation Clause did not demand admissibility of this evidence. Its probative value was extremely low, and the risk that its admission would confuse the jury was high. Although court declined to create a per se exception to the Rule 608(b) for sexual offenses, it expressly acknowledged that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude. Lopez v State, 18 S.W.3d 220 (May 3, 2000)
error (Rule 608. Evidence of Character and Conduct of Witness)
- It was error to overrule objection to impeachment of defense witness by asking him about pending charges. No merit to state's contention that Rule 612 allowed impeachment with proof of pending charges over def objection under rules 608(b) and 609, where the state's cross-examination* was merely to bring out evidence of the pending charges and state never questioned witness regarding his possible bias or motive. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)