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Impeaching Witnesses in Federal and Texas Criminal Cases
from Indigent Defense
by TCDLA
Assoc. Prof. Eric Porterfield, UNT Dallas College of Law
C. Character Evidence
There are several different categories of impeachment by character evidence: (1) impeachment by character reputation or opinion witnesses, (2) impeachment by specific instances of untruthful conduct, and (3) impeachment by conviction for a crime.
1. Reputation or Opinion Witnesses
Federal and Texas Rule of Evidence 608(a) are identically worded:
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
A witness can be impeached by calling another witness who will testify that the witness to be impeached has a poor character for truthfulness. This type of impeachment does not permit inquiry into specific instances of conduct. The direct examination of such witnesses is very limited. The questioner may only inquire as to the character witness’s basis for personal knowledge and her opinion or knowledge of the witness to be impeached character for truthfulness.
Q: Ms. Character Witness, are you acquainted with Witness X?
A: Yes, I am.
Q: In what context do you know Witness X?
A: He has been my neighbor for more than 10 years.
Q: So you have known Witness X for more than 10 years?
A: Yes.
Q: In that time, have you formed an opinion of Witness X’s character for truthfulness or untruthfulness?
A: Yes, I have.
Q: And what is your opinion of Witness X’s character for truthfulness or untruthfulness?
A: In my opinion, he is a very untruthful person.
Importantly, the character witness may not provide specific instances of conduct to explain why Witness X has a poor character for truthfulness. On cross examination, however, the Character Witness may be asked about specific instances of Witness X’s conduct, provided that the instances are probative of truthfulness.
2. Impeachment by Specific Instances of Conduct Other Than Convictions
Federal Rule of Evidence 608(b) permits witnesses to be impeached by specific instances of conduct that are probative of untruthfulness. Texas law does not permit this.
