The Ashley Madison website self-describes as “the most famous name in infidelity and married dating.” https://www.ashleymadison.com/ (last visited August 27, 2015). The hacking of the website resulted in the release of the names of tens of millions of subscribers – individuals who joined the website with the ability and apparently the intent to seek out a partner for an adulterous encounter, be it one-time or ongoing.
And if one of those individuals were to now be a witness in a trial, would the act of registering an interest in or seeking out an adulterous relationship be admissible as an attack on credibility? To answer the question requires a parsing of the language, theoretical underpinnings and application of Federal Rule of Evidence 608(b).
Before discussing the Rule, practitioners need to be chided for its apparent underuse. Available in many jurisdictions [Pennsylvania being a notable exception] as a tool for attacking witness credibility, its limited role in the litigator’s toolkit is confirmed in evidence lectures, when practicing lawyers and judges show unfamiliarity with the rule; and arguably by the paucity of cases mentioning its language. As of August, 2015, only 382 reported decisions were found in a national LEXIS search using the parameters “608(b) w/12 specific w/5 conduct w/12 character.”
So what does the Rule provide? At its core, “specific instances of a witness’s conduct… may, on cross-examination,…be inquired into if they are probative of the character for truthfulness or untruthfulness of [] the witness[.]”
The Rule’s genesis can be found in a common law tradition of allowing witnesses to be impeached with at least some types of misconduct. As described in the late 1800s, a witness “may be interrogated upon specific acts and transactions of his past life…if they are not too remote in time and clearly relate to the credit of the witness in an important and material respect…” Terr. v. Chavez, 45 P. 1107, 1108 (N.M. 1896). The line was that between “those matters…which merely excite prejudice against the witness or tend to humiliate him or wound his feelings, and those…calculated in an important and material respect to influence the credit to be given to his testimony.”
Arguably, Rule 608(b) is consistent with this antecedent common law approach. It recognizes the distinction between acts, even dishonest ones, and acts that “reflect on the witness’s character for truthfulness or untruthfulness…” 4-608 Weinstein’s Federal Evidence § 608.22. All of us have told a lie or done something dishonest in nature; but the rule envisions more – an act that is a proxy for or measure of having a character for being dishonest, a general propensity to lie. And of course 608(b) evidence may be subject to further scrutiny under Rule 403, although that should be tempered with the command of Rule 611 that judges “protect witnesses from harassment or undue embarrassment.” By dint of this language, some embarrassment is inherent in testifying and is “due.”
Having said that, the Rule is arbitrary in defining which acts are sufficient to show propensity. It is not tethered to any scientific measure or research as to what conduct predicts future lies but instead vests the decision-making authority as to which acts qualify in the judge’s discretion, an “I know it when I see it” jurisprudence. Examples of acts that were deemed to show a dishonest character include: using false social security numbers; lying on an employment application about not having received psychiatric treatment; bringing false criminal charges against another; fraudulently reneging on a home sale agreement; receiving stolen goods; and witness intimidation, the last on the theory that “[t]hreatening to cause physical harm to a person who proposes to testify against you is at least as probative of truthfulness as receiving stolen tires or a stolen railroad ticket.” United States v. Manske, 186 F.3d 770, 776 (Wis. 1999)(offering an overview of varying approaches to Rule 608(b) analysis).
Given that lying on an employment application was deemed to be indicative of dishonest character, one might expect adultery or attempts at engaging in adultery to be treated the same. Yet the opposite is true. Relying on non sequitur, inapposite caselaw [such as cases rejecting a woman’s promiscuity as a permissible ground for attacking credibility] or just ipsi dixit pronouncement, several courts have held that an adulterer “may not be impeached on cross-examination based solely on the existence of an adulterous relationship when the relationship is collateral to the charged crimes.” State v. Moses, 726 A.2d 250, 252-253 (N.H. 1999) (collecting cases). See also State v. Morgan, 340 S.E.2d 84, 90 (1986).
What stands unexplained is how breaking a marital vow of monogamy is less probative of truthful or untruthful character than reneging on a sales agreement or lying on a job application. Unless one concludes that adultery is a stand-alone dishonesty, confined to intimate sexual activity and not extrapolatable to other spheres of life, the distinction is without reason. It also runs afoul of the popular view of adultery, one that is highly condemnatory.
So, what about applying 608(b) to a witness who, it turns out, was exposed by the hack as being an Ashley Madison registrant/member? Notwithstanding the dated and, as suggested above, less-than-sound caselaw excluding adultery from the realm acts emblematic of dishonest character, valid arguments can be made that this is at least as probative of the more typical fraudulent behavior and has the same hallmarks – deceiving a trusted individual for personal gratification or gain.
There may, however, be proof problems. The first is determining whether the individual actually was an Ashley Madison member or was the victim of identity theft. Next, there is arguably an escalating scale – those who joined Ashley Madison; those who attempted to have an illicit liaison; and those who ‘succeeded.’ But whatever the hierarchy of conduct, if the name of a witness is on the Ashley Madison list a 608(b) attack needs to be contemplated and investigated; and if the person is not listed, it does not mean that there is not some core dishonest act that the witness may have committed. The skilled litigator only needs to remember to look for it.