Extrinsic Evidence May Be Used To Impeach Even If FRE 608(b) Appears To Prohibit It
Trial attorneys understand that generally a witness can be impeached with evidence of his or her prior acts going to truthfulness, but only by cross-examining the witness on the point. FRE 608(b) requires the examiner to accept the witness’s answer, and prohibits accomplishing the impeachment extrinsically, through the testimony of a follow-on witness or the admission of a document. Unless the misconduct qualifies as a prior conviction under FRE 609 and can under that Rule be proved extrinsically, the cross-examiner may enthusiastically wave a document before the witness or accuse loudly and longly, but the witness can always retreat to the safety of a denial, confident that no other witness or document will be later offered to contradict.
Unless, that is, the prior act in question is an earlier inconsistent statement of the witness, which can be proven extrinsically notwithstanding the wording of Rule 608(b). The court in United States v. Rodriguez, 539 F. Supp.2d 592 (D. Ct. 2008) allowed the government to call two rebuttal witnesses to contradict the testimony offered by defendant Rodriguez regarding alleged drug deliveries. The defendant had argued that Rule 608(b) prohibited the extrinsic evidence which contradicted him.
The court held that, although not explicitly authorized by Rule 608(b), the doctrine of impeachment by contradiction is an exception to the Rule's general bar against extrinsic impeachment. There is, of course, another theory under which to admit extrinsic proof of a prior inconsistent statement by the witness, albeit not one discussed by the court. FRE 613(b) requires that the witness be given an opportunity to explain or deny a prior inconsistent statement, but then permits its proof extrinsically.
Unless, that is, the prior act in question is an earlier inconsistent statement of the witness, which can be proven extrinsically notwithstanding the wording of Rule 608(b). The court in United States v. Rodriguez, 539 F. Supp.2d 592 (D. Ct. 2008) allowed the government to call two rebuttal witnesses to contradict the testimony offered by defendant Rodriguez regarding alleged drug deliveries. The defendant had argued that Rule 608(b) prohibited the extrinsic evidence which contradicted him.
The court held that, although not explicitly authorized by Rule 608(b), the doctrine of impeachment by contradiction is an exception to the Rule's general bar against extrinsic impeachment. There is, of course, another theory under which to admit extrinsic proof of a prior inconsistent statement by the witness, albeit not one discussed by the court. FRE 613(b) requires that the witness be given an opportunity to explain or deny a prior inconsistent statement, but then permits its proof extrinsically.
