Court of Appeals of North Carolina Reverses Conviction Based on Improper Admission of Rehabilitation Testimony

The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

On Penny’s cross-examination, Defendant challenged her credibility by pointing out inconsistencies in her trial testimony, interviews, and written narrative. Defendant also emphasized Penny’s delayed disclosure and questioned whether Penny was upset with Defendant for reporting that Penny’s mother was using drugs in violation of her probation. Based on Defendant’s impeachment of Penny, the trial court allowed the State to present evidence of Penny’s good character for truthfulness. Thereafter, five of the State’s witnesses, including Kate, Mia, Pastor Pollock, Defendant’s wife, and Student Pastor Stephen Braswell, testified as to Penny’s good character for truthfulness.

While not controlling, federal case law interpreting and applying Rule 608(a)’s federal counterpart is instructive on the difference between attacks on credibility that challenge a witness’s character for untruthfulness and those that do not—an issue our courts have yet to thoroughly address….

In drawing the distinction, federal courts analyze whether the attack on credibility was “indirect” or “direct.”… Impeachment methods challenging a witness’s “general character for truthfulness”—that is, methods tending to show that the witness is a liar in general—constitute “indirect” attacks that trigger rehabilitative evidence under Rule 608(a)(2)….This is because such impeachment evidence “require[s] the jury to infer that the witness is lying at present simply because he has lied often in the past.”…For example, opinion or reputation evidence of a witness’s character for untruthfulness elicited under Rule 608(a) constitutes an attack sufficient to warrant rehabilitative evidence….Likewise, impeachment evidence elicited under Rule 609 qualifies as an attack on a witness’s character for untruthfulness because “[t]he premise behind [this] rule is that a witness who has previously been convicted of a felony, or a crime involving dishonesty or a false statement, is more likely to lie than is a person with a spotless past.”…

On the other hand, impeachment methods challenging whether the witness is being truthful “in the instant case” constitute “direct” attacks that do not automatically trigger rehabilitative evidence….For instance, pointing out inconsistencies in prior statements does not qualify as an attack on a witness’s character for untruthfulness….This is because pointing out inconsistencies in prior statements implies that the witness is mistaken or misrepresenting the facts of the instant case—not that they are a liar in general….

Our Courts have not yet addressed evidence or questions concerning bias in this context. Nevertheless, we conclude a suggestion of bias, like a suggestion that the witness has been inconsistent regarding the facts of the case, does not constitute an attack on the witness’s character for untruthfulness. Instead, such evidence tends to imply the witness is being untruthful because she has a reason or motivation to lie—not that she is a liar in general.