The Key Difference Between Federal Rule of Evidence 608(b) and its Pennsylvania Counterpart

In yesterday’s post, I noted a key difference between Federal Rule of Evidence 608(b) and its Oregon counterpart. In this post, I’ll note a key difference between Federal Rule of Evidence 608(b) and its Pennsylvania counterpart. Federal Rule of Evidence 608(b) provides in pertinent part that:

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.

On the other hand, Pennsylvania Rule of Evidence 608(b) states the following:

(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness’ conduct; however,

(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.

So, what does this mean in practice?

Imagine that Dana is on trial for murder and testifies in her defense. Two years ago, Dana was fired from her job for stealing from petty cash, but not charged or convicted in connection with her crime. Felicia is Dana’s former friend and testifies for the prosecution that she believes Dana to be untrustworthy. Felicia herself allegedly defrauded her neighbor, Nancy, out of $2,000, but has not been charged or convicted in connection with her crime. Sally is Dana’s sister and testifies for the defense that she considers her sister to be trustworthy.

Under Federal Rule of Evidence 608(b), on cross-examination, (1) the prosecution could ask Dana about being fired from her job; (2) the defense could ask Felicia about her fraud; and (3) the prosecution could ask Sally if she knows about Dana being fired from her job for embezzlement.

On the other hand, under Pennsylvania Rule of Evidence 608(b), (1) the prosecution could not ask Dana about being fired from her job; (2) the defense could not ask Felicia about her fraud; but (3) the prosecution still could ask Sally if she knows about Dana being fired from her job for embezzlement.

-CM