By Jon English
Assistant Criminal District Attorney in Hays County
Last year, I was trying an assault family violence–impeding (strangulation) case. Those trials are difficult to win under the best of circumstances, but we were proceeding on a case that was truly a he-said-she-said, in that the primary evidence came from the victim’s testimony. The assault happened literally behind a closed door in the couple’s bedroom. There were no eyewitnesses, though there were several people in the living room during the assault, including the defendant’s two teenaged children and his (adult) best friend. To make things even more difficult, the report of the assault was delayed by almost two months. The victim had photographed her injuries the night of the assault, but her primary injury was a knot on her forehead. There was no visible evidence of strangulation.
As we headed into trial, it was obvious that everything would depend on the jury finding the victim credible. And when she took the stand, she did well on both direct and cross, and her testimony was compelling. I even felt like we may have had a few jurors on our side at that point. The State rested and prepared for the defense to present its case.
The defense attorney started calling witnesses in what we assumed would be a parade of largely impermissible character bolstering for the defendant. But that wasn’t what happened at all. Instead, the defense called the defendant’s children and his best friend who had been at the house that night, and their testimony about many facts from the evening in question directly contradicted the victim’s. They also each testified that, in their opinions, the victim did not have a reputation for truthfulness. OK. Not great, but not lethal, right? It seemed fairly obvious that those witnesses were biased toward the defendant, and their testimony wouldn’t count for much. It felt like we were still in the running.
Then the defense called the victim’s mother. That’s right, her own mother. Her mom testified that in her opinion, her daughter was not a truthful person. Ouch. We were on the ropes. But then the defense began to ask for specific instances of when the victim had lied. I stood up and objected, and I asked to approach.
At the bench, I argued that a witness’s character for truthfulness could be proven only by reputation or opinion evidence. This wasn’t a fancy argument on my part. It was literally the black-letter law of Rule 608. We even got out the code to look at it and yep, right there, it said exactly what I thought it said.
But the defense attorney had a comeback. His position was that I had overlooked Rule 404(a)(3)(A), which says that the defense can offer evidence of a victim’s pertinent character trait, and it can even be used to show that the victim (witness) acted in conformity with that character trait on a particular occasion. The defense also argued that under Rule 405(b), specific instances of conduct are admissible to illustrate a character trait that is an essential part of a defense. And in this case, the defense continued, that character trait was that the victim was a liar, which was essentially the entire defense.
I wasn’t buying it. Why would there be a rule specifically to set out proper methods for attacking a witness’s character for truthfulness if another rule, which doesn’t mention truthfulness at all, could serve to supersede it? I thought that was a pretty sound argument. The judge didn’t. He overruled my objection and allowed the victim’s mom to unload on her.
And unload she did. By the time her mom got off the stand, she had alleged many incredibly heinous, specific instances of lying on her daughter’s part. None in relation to this offense but nonetheless spanning years and years of her life. After hearing all of that, the jury wouldn’t have convicted even if they had personally witnessed the assault themselves.
Needless to say, the defendant walked. And as soon as I completed the judgment of acquittal, I started to scour the Rules of Evidence and caselaw to keep in my back pocket in case this situation ever came up again.
What the Rules of Evidence say
The U.S. Supreme Court and the Texas Court of Criminal Appeals have both found that the right to attack the general credibility of witnesses is included in the Sixth Amendment.[1] But that right can be qualified by the state’s Rules of Evidence, provided those rules allow for a method of discrediting a witness when the witness’s motive, bias, or prejudice is part of an essential defensive theory.[2]
And the Texas Rules of Evidence do just that. There are many situations where you can get into specific instances of a witness’s conduct under the Rules of Evidence. For example, the most well-known is built right into Rule 608, and that’s Rule 609: impeachment by evidence of a criminal conviction. You can impeach a witness with a prior inconsistent statement under Rule 613(a) or a statement establishing bias or interest under Rule 613(b), provided you lay the proper foundation.
Rule 412 also allows specific instances of a witness’s prior sexual conduct to be admitted under certain circumstances. And Katy bar the door when it comes to Rule 404(b); the exceptions for admitting extraneous offenses under that rule are presumably unlimited, as long as they’re not used to show character in conformity and as long as they aren’t expressly prohibited by another rule.
Rule 405(b) most certainly says what the defense in my case claimed: that specific instances of conduct are admissible if the conduct was an essential element of a charge, claim, or defense. Furthermore, that same rule allows for specific instances of conduct to be raised when cross-examining a character witness. And there are many more circumstances where extrinsic evidence can be admitted, provided they are for some purpose other than one specifically prohibited by the rules.
And I want to be clear that extrinsic evidence is not inadmissible simply because it illustrates that a witness is an untruthful person. As long as it is being offered for a purpose explicitly permitted by the rules, extrinsic acts are admissible for a variety of reasons. It’s just that the extrinsic evidence can’t be offered for the purpose of showing that the witness is not a truthful person, and most certainly it can’t be offered to show that, in a specific instance, the victim acted in conformity with that character for untruthfulness.
This means the defense can’t sidestep Rule 608’s prohibition against offering specific instances of conduct to show untruthful character simply by claiming “she’s a liar” as the defense. Saying that someone is a liar is not a formal defense to a crime; rather, it merely negates an element of an offense.[3] And Rule 608(b) states with alarming specificity that, except for evidence of a criminal conviction under Rule 609, you can’t support or attack a witness’s reputation for truthfulness with extrinsic evidence.
Takeaways
I’ll never know if we would have obtained a conviction in that trial had the judge excluded the mother’s stories of specific instances of conduct. He-said-she-said cases are common in our line of work, and painting a victim as a bad or dishonest person is an equally common defense strategy. But the Rules of Evidence frown on unnecessary character assassination.[4] Cases like mine are exactly why.
It’s hard for us as human beings to hear specific evidence that someone has a habit of dishonesty and then still believe her in regard to a certain moment in time. That’s why a victim’s propensity for untruthfulness in the past is likely to be interpreted by a jury as a reasonable doubt that she is not telling the truth in the instant case. Likewise, therein lies the reason that propensity is not permitted through anything other than reputation or opinion evidence: We don’t want juries basing their decisions on the way people have acted in the past; we want them looking at the evidence of behavior in the moment in question. Sometimes, that moment is when the witness is on the stand. And while the jury is the sole judge of the witness’s credibility, that assessment should not be tainted by allegations of specific conduct that a jury simply won’t be able to disregard.
If you’ve got a case on the trial docket that relies heavily on the credibility of a victim (don’t they all?), you might consider a motion in limine that sets out the law on extrinsic evidence regarding a victim’s character for truthfulness. It may not prevent the defense from violating the motion anyway, but it gives you a chance to educate the court about what the rules and caselaw really mean, and more importantly, makes your voice the first one heard on the subject. In the end, it could be the difference between holding a violent offender accountable and watching that defendant walk free.
[1] Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009)(citing to Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)).
[2] Id. at 562–63.
[3] Stewart v. State, No. 05-96-00128-CR, 1997 WL 524154, at *4 (Tex. App.—Dallas Aug. 26, 1997, no pet.).
[4] Hammer, 296 S.W. 3d at 563.