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

In pertinent part, Federal Rule of Evidence 608(b) provides 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.

Oregon’s version of the rule, however, is different.

Under Oregon’s version,

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS 40.355, may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.

So, what does this mean in practice? Assume that Erica, an eyewitness to a murder, was fired from her job for stealing money from petty cash, but never charged or convicted for any crime in connection with this act of embezzlement.

In a trial held under the Federal Rules of Evidence, defense counsel could ask Erica on cross-examination about being fired if the court determined that her act of embezzlement was sufficiently probative of her character for untruthfulness. The defense, however, could not follow up by calling Erica’s boss to testify to the theft or introduce a surveillance video of the theft because both would constitute extrinsic evidence.

Conversely, in a trial held under the Oregon Rules of Evidence, defense could could not ask Erica about being fired and also could not call the boss or introduce the surveillance video. As the language of the Oregon rule makes clear, such an act cannot be inquired into at all.

-CM