June 07, 2019 Practice Points

A Quick Guide to Rule 608(b): An Underutilized Impeachment Tool

Learn how to master the art of this often misunderstood rule.

By Tracey Timlin

Rule 608(b) of the Federal Rules of Evidence provides one of the most useful and powerful impeachment tools available to lawyers during cross-examination. Specifically, Rule 608(b) enables lawyers to ask targeted and damaging questions about a witness’s past bad actions, or specific instances of misconduct, during cross-examination. A strong line of questioning under Rule 608(b) can destroy a witness’s credibility and leave little room for rehabilitation. Yet, despite the rule’s potential, it is often misunderstood and underutilized.

Rule 608(b) states in relevant part:

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.

The structure of Rule 608(b), which places limitations and restrictions before the permissive grant of authority, may distract from the rule’s overall potential. However, at its core, Rule 608(b) permits any questions on cross-examination that relate to specific instances of misconduct in the witness’s past, so long as the lawyer has a good-faith basis to believe that such instances of misconduct are probative of the witness’s character for truthfulness or untruthfulness. The rule’s broad scope captures any instances where the witness lied or acted in a dishonest or deceitful way, with no explicit time or substance restrictions. This could include virtually any dishonest conduct in the witness’s past, from lying on a job application to failing to file tax returns to more serious allegations of misconduct, like theft or bribery. The conduct need not even amount to a criminal action, as criminal conduct is covered by a separate rule of evidence. Therefore, Rule 608(b) opens a wide door to effective and damaging impeachment material.

One concern that lawyers may have about relying on Rule 608(b) during cross-examination is that the Federal Rules of Evidence otherwise generally prohibit introducing evidence of a person’s character or character trait. However, the general prohibition against character evidence only applies if the evidence is offered to prove propensity, or that the person acted in accordance with that character trait on a particular date and time. By contrast, Rule 608(b) specifically permits questioning on a witness’s character for truthfulness or untruthfulness not to prove propensity, but rather to assess the witness’s honesty and credibility. Rule 608(b) is an explicit acknowledgement that every witness who testifies places their character for truthfulness or untruthfulness at issue. An effective cross-examination, therefore, should seek to invoke Rule 608(b) broad grant of authority to test a witness’s general character for truthfulness.

The main limitation to Rule 608(b) is that it is a collateral attack on the witness’s credibility, which means that extrinsic evidence is not admissible to prove that the witness actually engaged in the specific instance of misconduct at issue. Accordingly, if the witness denies that the specific instance of misconduct occurred, the party conducting the cross-examination may be left with the witness’s answer. However, the fact that documents relating to the witness’s specific instances of misconduct may not be admitted as evidence does not meant that they cannot be used during the cross-examination. Nothing in Rule 608(b) prevents a lawyer from providing copies of the relevant documents to the witness during the cross-examination and asking the witness about them. At that point, it will be more difficult for the witness to deny that the specific instance of misconduct occurred. However, even if the witness does still deny the specific instance of misconduct, presenting the document to the witness will indicate to everyone in the courtroom, including opposing counsel, the court, and the jury, that proof of this conduct exists. That alone can be enough to damage the witness’s credibility.

Rule 608(b), if utilized effectively, can provide one of the most powerful impeachment tools available to lawyers during cross-examination. Even one instance of dishonesty or deceit can be enough to call into question a witness’s credibility on the stand, and the strategic use of Rule 608(b) can leave opposing counsel with little room to rehabilitate the witness. Therefore, mastering the art of Rule 608(b) can lend a significant advantage during trial.

Tracey Timlin is an associate with Potter Anderson Corroon in Wilmington, Delaware.

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