Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law

(b) Specific Instances of Conduct. 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 selfincrimination for testimony that relates only to the witness’s character for truthfulness. While a witness can be asked whether he or she engaged in behavior that is probative of character for truthfulness, the questioner may not admit extrinsic evidence about such behavior. This is commonly referred to as being “stuck” with the witness’s answer. See United States v. Abel, 469 U.S. 45 (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 1984).

Some examples of specific instances of conduct that are probative of truthfulness include:

• Using a different name than the name given at trial. United States v. Ojeda, 23 F.3d 1473, 1476–77 (8th Cir. 1994).

• Lying on an employment application. United States v. Howard, 774 F.2d 838, 844–45 (7th Cir. 1985).

• Lying on loan applications. United States v. Chevalier, 1 F.3d 581, 582, 583–84 (7th Cir. 1993).

• Failing to file tax returns. Chnapkova v. Koh, 985 F.2d 79, 82–83 (2d Cir. 1993).

• Bribery. United States v. Nosov, 221 F. Supp. 2d 445, 448–51 (S.D.N.Y. 2002), aff’d, 119 F. App’x 311 (2d Cir. 2004). However, questions about pornographic behavior is not be probative of truthfulness. Id.

Such questions about specific instances of conduct other than convictions would not be permissible to impeach a witness’s character for truthfulness in Texas courts.

3. Impeachment by Conviction of Crime

Both the Federal and Texas rules allow a witness to be impeached with certain criminal convictions for the purpose of showing the witness has a poor character for truthfulness. Both rules apply only when a criminal conviction is offered to impeach character for truthfulness; when a conviction is offered for some other purpose, such as bias, Rule 609 does not govern admissibility. See Davis v. Alaska. There are many differences, however, between the federal and Texas rules.

Federal Rule of Evidence 609 provides: Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: