First Circuit Finds Introduction of Inmate’s Phone Calls to Impeach Her Violated Rule 608(b)

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.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The recent opinion of the First Circuit in Lech v. von Goeler, 2024 WL 396346 (1st Cir. 2024), provides a good example of extrinsic evidence improperly being introduced under Rule 608(b).

In von Goeler,

When she was thirty-four weeks pregnant and during a three-month period of incarceration at a correctional facility in Western Massachusetts, Lidia Lech experienced a stillbirth. She sued healthcare providers and other staff affiliated with the facility, alleging that they disregarded her concerns about the serious medical symptoms she was experiencing and denied her repeated requests to go to a hospital, resulting in her baby’s death.

After the jury found for the defendants, Lech appealed, claiming, inter alia, “that the district court erred when it allowed defendants to play portions of recorded calls she made at WCC to prove her purportedly untruthful character. She asserts that this use of the recordings violated Federal Rule of Evidence 608(b).”

According to the court,

At trial, defendants played portions of recorded phone calls Lech made to her family while she was at WCC. They then asked her whether specific statements she made in those recordings unrelated to her medical care — such as the basis for her probation violation, whether her then-boyfriend was living in a sober house, and her boyfriend’s employment history — were untruthful. Similarly, defendants played portions of recorded calls Lech made to her then-boyfriend. They asked her to confirm that, in those recordings, she discussed participating in or planning deceitful conduct unrelated to her medical care, such as lying to her family for her boyfriend, telling her boyfriend not to appear for an upcoming court date, and discussing how her boyfriend could obtain a false negative on a drug test.

The district court initially ruled that such use of the recorded calls violated Rule 608(b), but it invited defendants to file a motion on the issue. Defendants did so, arguing in part that the phone calls were not extrinsic because they already had been admitted into evidence, and that, even if the rule’s prohibition on the use of extrinsic evidence applied, defendants were permitted on cross-examination to inquire into Lech’s untruthful statements on the calls. The district court then reversed its earlier ruling and determined that “the specific instances of untruthfulness reflected in the phone calls” were admissible, although it did not explain its reasoning.

We conclude that the district court ran afoul of Rule 608(b) when it allowed defendants to play the recordings before the jury. Defendants recognize on appeal, as they did below, that Lech’s allegedly untruthful statements on the recordings were specific instances of her conduct and that they sought to use the recordings to attack Lech’s character for truthfulness. Defendants argue, however, that the recordings were not extrinsic evidence because they were admitted and used during Lech’s direct testimony and so are not covered by Rule 608(b).

But we have stated that “extrinsic evidence includes any evidence other than trial testimony.” United States v. Balsam, 203 F.3d 72, 87 n.18 (1st Cir. 2000)….Indeed, in Balsam, we held that taped recordings of jailhouse phone conversations were inadmissible under Rule 608(b) because “the tapes were just such nontestimonial evidence.”… Here, Lech’s statements on the recordings were not developed in her trial testimony and therefore were extrinsic. And the fact that Lech’s counsel used portions of the calls for one purpose — to bolster her testimony on direct examination — does not answer the question of whether defendants’ use of different portions of the calls for a different purpose violated Rule 608(b). 

-CM