Striptease: DDC Finds Strip Club-Defendant Can Question Plaintiff-Strippers About Unreported Tips, But…
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.
Under Rule 608(b), it is clear that witnesses can only be questioned about acts relating to crimen falsi, i.e., acts of falsehood or deceit, such as a waitress failing to report tips as income, as was the case in United States District Court for the District of Columbia in Tompson v. House, Inc., 2011 WL 6794939 (D.D.C. 2011). But as the language of Rule 608(b) makes clear, such questioning often won’t be effective.
In Tompson, the plaintiff on behalf of herself and all others similarly situated brought an action against several defendants, including The House, a nightclub and bar featuring nude exotic dancers. According to the complaint,
During her term of employment, Plaintiff was paid approximately $40 in cash per night for the nights that she danced. Plaintiff regularly worked ten (10) hour dance shifts per night, four (4) nights per week. While in Defendants employ, Plaintiff’s regular rate of pay was approximately $4.00 per hour ($40 per day / 10hrs/night).
The plaintiff’s complaint alleged, inter alia, that the defendants took unexplained deductions from her wages and that her rate of pay violated the minimum wage level set by the Fair Labor Standards Act.
Before trial, the plaintiffs filed motion in limine “to prohibit evidence of any kind of tip income received by plaintiffs as irrelevant because any evidence of tips or gratuities received from patrons at defendants’ club cannot be used as an offset against minimum wages owed to plaintiffs by defendants.” In response, the
Defendants agree[d] that tip income does not provide an offset against minimum wages due….Defendants argue[d], however, that the tip income [wa]s relevant because plaintiffs’ receiving tip income and not reporting it as income on their tax returns bears on their credibility. Additionally, according to defendants, plaintiffs’ receipt of large amounts of tip income would establish that defendants not paying them minimum wage was done in good faith because defendants were aware that plaintiffs were receiving tips that were apparently greater than the minimum wage.
The United States District Court for the District of Columbia sided with the defendants, but not really. According to the court,
First, while not paying one’s taxes might qualify as a prior bad act, defendants are bound by plaintiffs’ answers and their not reporting their tips as income may not be proved by extrinsic evidence. Fed. R.Evid 608(b). Thus, proof of their tip income from some source other than their own testimony is inadmissible.
Second, each plaintiff would have an absolute right at the hearing not to answer whether she received and reported tip income because the answer might tend to incriminate her.
So, in other words, under Rule 608(b), the defendants could ask the plaintiffs about failing to report their tips because these were acts of falsehood deceit; however, (1) the plaintiffs could refuse to answer these questions on Fifth Amendment grounds; and (2) the defendants couldn’t prove these acts through extrinsic evidence.
-CM