Lie to Me: Arizona Court Finds That Witness Can Be Questioned Concerning Lying About Shooting

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 United States District Court for the District of Arizona in United States v. Dellinger, 2013 WL 5929946 (D.Ariz. 2013), does a good job of explaining the ins and outs of this Rule.

In Dellinger, 

a grand jury indicted Defendants Paul James Dellinger and Brian Luke Bonetto, both of whom worked as federal prison guards. The indictment allege[d] that Defendant Dellinger tackled and punched an inmate, violating his rights under the color of law in violation of 18 U.S.C. § 242….It also allege[d] that Defendant Bonetto witnessed the attack and that both Defendants failed to report the incident accurately and thereby obstructed justice in violation of 18 U.S.C. § 1519. 

After the prosecution indicated that Kendall Nez would be a witness for the prosecution, the government files a motion in limine seeking to preclude the defense from cross-examining regarding an incident in which he allegedly lied about a shooting. The district court denied the motion, concluding that

Defendants will be permitted to ask witness Kendall Nez on cross-examination whether he lied to the FBI in connection with the November 6, 2012 shooting of Mr. Nez. Fed.R.Evid. 608(b).      This questioning necessarily will require some evidence that the shooting occurred. The Court will make determinations during trial on the extent to which details of the shooting should be revealed, but generally holds the view that the jury needs to hear only enough detail to understand defense questions concerning whether Mr. Nez lied to investigators. Extrinsic evidence of any such lie will not be permitted.

In other words:

1. For a party to be able to cross-examine a witness about a specific incident of dishonesty under Rule 608(b), it must present evidence such that judge could find by a preponderance of the evidence that the incident occurred;

2. The party must only ask those questions about the incident that are necessary for the jury to be able to assess the witness’s (dis)honesty; and

3. The party cannot prove the incident through extrinsic evidence.

-CM