705.4Impeachment: Character & Conduct [Rule 608]

The Basic Rule

Rule 608 – Evidence of Character and Conduct of Witness

G.S. 8C-608 (re-formatted for clarity).

Legal Overview

Under Rule 404(a), a person’s character is usually inadmissible for the purpose of showing that he or she acted “in conformity therewith” on a particular occasion. See G.S. 8C-404(a); see also the related entry on Character Generally [Rule 404(a)].

However, an exception to Rule 404(a) permits evidence of the character of a witness (which includes the victim or defendant, if they testify) to be offered in accordance with Rule 607 (“Who may impeach”), Rule 608 (“Evidence of character and conduct of witness”), and Rule 609 (Impeachment by evidence conviction of crime). See G.S. 8C-404(a)(3).

For more information about Rule 607 and impeachment in general, see the related entry here. For more information about Rule 609 and impeachment with prior convictions, see the related entry here.

The remainder of this entry focuses on Rule 608, which governs challenging or supporting a witness’s credibility through evidence of the witness’s “character for truthfulness or untruthfulness.”

Reputation and Opinion Evidence

Rule 608(a) permits a party to attack or support the credibility of a witness through reputation or opinion evidence “as provided in Rule 405(a).” G.S. 8C-608(a). For more information about Rule 405 and the various methods of proving character (reputation, opinion, or specific instances), see the related entry here.

In addition to complying with the general procedures set forth in Rule 405, there are two other important limitations on the use of reputation or opinion evidence to challenge or support the credibility of a witness under Rule 608(a).

Character for Truthfulness

Reputation or opinion evidence regarding “credibility” may only refer to the witness’s “character for truthfulness or untruthfulness.” G.S. 8C-608(a)(1); See, e.g., State v. Hunt, 339 N.C. 622 (1994) (“the only character trait relevant to the issue of credibility is veracity or the lack of it.”); quoting State v. Morgan, 315 N.C. 626 (1986); State v. Thaggard, 168 N.C. App. 263 (2005) (defense witness who knew the victims’ reputation for truthfulness in the community was properly allowed to testify on direct examination that “they lie”).

After Attacked

Additionally, reputation and opinion evidence to support a witness’s truthful character is only permitted after the witness’s credibility has been attacked by reputation or opinion evidence “or otherwise,” such as by asking questions on cross-examination intended to show that the witness is untruthful. See G.S. 8C-608(a)(2). This was ostensibly the rule in North Carolina even before Rule 608 was adopted. Because, however, the necessity for impeachment as a prerequisite to corroboration was “more theoretical than real” in practice, Rule 608 made the requirement explicit. G.S. 8C-608, Official Commentary. The rule thus prohibits “bolstering” a witness’s credibility unless and until it has been challenged. See, e.g., State v. Hall, 98 N.C. App. 1 (1990), reversed on other grounds, 330 N.C. 808 (1992) (after “the defendant's attorney repeatedly attempted to impeach [the victim] ... the State could then present reputation or opinion evidence as to the victim's reputation for truthfulness.”); State v. Sidden, 315 N.C. 539 (1986); see also State v. Hewett, 93 N.C. App. 1 (1989) (finding no error under Rule 608(a) where prosecutor asked child witness on redirect examination if she “had testified truthfully” on direct, following cross-examination in which defense counsel asked if child if she “had ever told a lie”).

Specific Instances of Conduct

Rule 608(b) permits evidence of specific instances of conduct for the purpose of attacking or supporting the credibility of a witness subject to several conditions and limitations summarized below. See generally State v. Morgan, 315 N.C. 626 (1986); State v. Brown, 148 N.C. App. 683 (2002).

Only on Cross-examination

Specific instances of conduct offered for the purpose of attacking or supporting credibility may only be introduced on cross-examination. G.S. 8C-608(b). On cross-examination, the witness may be asked about specific instances of his or her own conduct and character for truthfulness (e.g., “isn’t it true that you lied on your taxes last year?”), or about another witness about whose character for truthfulness the witness being cross-examined has testified (e.g., “you just testified on direct that the defendant’s alibi witness is known to be an honest person – but are you aware that he lied on his taxes last year?”). G.S. 8C-608(b)(1), (2). See, e.g., State v. Baldwin, 125 N.C. App. 530 (1997) (error not to allow cross-examination of detective about a prior instance where he lied to a defendant in order to coerce a confession).

The cross-examiner must have a good-faith basis for asking the question, although the basis does not have to be independently admissible (e.g., may be based on hearsay). See State v. Warren, 327 N.C. 364 (1990); State v. Foster, 293 N.C. 674 (1977); State v. Harrell, 20 N.C. App. 352 (1974).

Probative of Truthfulness

As with reputation or opinion evidence, the specific instances of conduct must be probative of the witness’s character for truthfulness or untruthfulness to be admissible. See State v. Morgan, 315 N.C. 626 (1986) (“Among the types of conduct most widely accepted as falling into this category are use of false identity, making false statements on affidavits, applications or government forms (including tax returns), giving false testimony, attempting to corrupt or cheat others, and attempting to deceive or defraud others”) (internal citation omitted). See, e.g., State v. Browning, 177 N.C. App. 487 (2006) (allowing evidence of false statements to police); State v. Bishop, 346 N.C. 365 (1997) (allowing evidence of forgery on loan application); State v. Baldwin, 125 N.C. App. 530 (1997) (allowing evidence of deception in a prior investigation); see also State v. Kimble, 140 N.C. App. 153 (2000) (no error in allowing state to cross-examine defendant about insurance fraud scheme involving his parents and brother, since “the possibility that defendant was aware of, and therefore conspired in, an insurance fraud scam undertaken by his brother and his parents is arguably probative of defendant's truthfulness”).

By contrast, specific instances of many other types of “bad” conduct (such as drug use, violence, illicit sexual activity, and even theft) have been found inadmissible for impeachment under Rule 608 because they are not inherently probative of veracity. See, e.g., State v. Harris, 323 N.C. 112 (1988) (evidence of assaultive behavior was not probative of truthfulness, and claim that it was offered for that purpose under Rule 608 was “disingenuous at best”); State v. Wilson, 118 N.C. App. 616 (1995) (“drug use is generally considered irrelevant” to showing a witness’s truthfulness); State v. McEachin, 142 N.C. App. 60 (2001) (error to allow evidence that witness committed a burglary, because it “was not probative of his propensity for truthfulness or untruthfulness”); State v. Scott, 318 N.C. 237 (1986) (cross-examination about witness’s “bizarre and inappropriate” sexual activities was improper and not probative of truthfulness).

Opened the Door

Specific instances of conduct that would ordinarily not be admissible because they are not inherently probative of truthfulness may become relevant to the issue of truthfulness if the witness “opens the door” to that issue. See, e.g., State v. Larrimore, 340 N.C. 119 (1995) (after “defendant opened the door for this line of questioning by eliciting answers from the witness indicating a close and loving relationship” between the defendant and the witness, the state was properly allowed to ask the witness about past instances of violence by the defendant: “Where, as here, a witness has been the subject of past acts of violence and thereby has reason to fear another individual, those past acts are relevant to the issue of the witness' character for truthfulness or untruthfulness”); State v. Norman, 331 N.C. 738 (1992) (murder defendant testified that he “loved his wife and did not intend to kill her. This opened the door to questions by the State as to matters which would show the defendant did not love his wife,” such as questions about the defendant’s alleged affairs with other women); State v. Darden, 323 N.C. 356 (1988) (after defendant testified on direct examination that he had not injured the victim “or anyone else,” the state was properly allowed to cross-examine him regarding other past instances of violence, since those instances were now probative of whether the defendant, as a testifying witness, was being truthful).

Discretionary Decision to Allow or Deny

The court’s decision whether to allow inquiry into specific instances of conduct is discretionary and subject to a balancing test of the probative value of the evidence against the risk of prejudice, confusion, delay, harassment, or embarrassment. See G.S. 8C-608(b), Official Commentary  (“the overriding protection of Rule 403 requires that the probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment”); G.S. 8C-403 (relevant evidence may be excluded if its probative value is outweighed by risk of unfair prejudice, confusion, misleading the jury, delay, or waste of time); G.S. 8C-611(b) (witnesses “may be cross-examined on any matter relevant to any issue in the case, including credibility”). Compare State v. Darden, 323 N.C. 356 (1988) (state was allowed to cross-examine defendant about other specific instances of violence because “the accuracy of defendant's assertion that he had not injured anyone else was probative of his truthfulness or untruthfulness, and the trial court thus could, in its discretion, allow cross-examination regarding the assertion”) with State v. Kimbrell, 320 N.C. 762 (1987) (evidence regarding defendant's knowledge of and participation in “devil worship” was inadmissible on issue of his credibility, even if the evidence was probative of truthfulness, due to its highly prejudicial potential).

No Extrinsic Evidence

Specific instances of conduct used to impeach the truthfulness of a witness may not be proved by “extrinsic evidence” (e.g., photos, documents, or testimony from another witness), except for evidence offered to prove impeachment based on conviction of a crime under Rule 609. G.S. 8C- 608(b). See, e.g., State v. Lee, 189 N.C. App. 474 (2008) (“Extrinsic evidence within the meaning of Rule 608 is ‘[e]vidence that is calculated to impeach a witness's credibility, adduced by means other than cross-examination of the witness’”), quoting Black's Law Dictionary 597 (8th edition, 2004); see also State v. Mitchell, 169 N.C. App. 417 (2005) (after witnesses denied making prior statements, state was not permitted to introduce the statements into evidence to prove their contents and impeach the witnesses).

No Waiver of Privilege

Finally, Rule 608 states that a witness (including the defendant) who testifies does not waive the privilege against self-incrimination regarding matters related solely to credibility. In other words, a witness cannot be compelled to answer a question that would expose the witness to criminal liability if the matter only relates to the witness’s credibility. See, e.g., State v. Hamrick, 81 N.C. App. 508 (1986) (after witness testified on cross-examination that he earned some income from sale of firewood, prosecutor asked on redirect if the witness had reported that income to the IRS - it was error for trial court to force the witness to answer that question after the witness invoked 5^th Amendment privilege not to incriminate himself).