When may a lawyer, seeking to challenge the credibility of a witness, prove that the witness lied in a different trial [or a pre-trial proceeding in a different case]?  One may turn to Federal Rule of Evidence 608(b) for a partial answer; but not all states have adopted 608(b) – Pennsylvania being one example – and even if a state has or if the case is being tried in federal court, a judge might conclude that such a lie does not rise to the threshold of 608(b) as proving the character trait of dishonesty.  As one recent case makes clear, the Constitution may offer another ground for admissibility.

Before we get to that, let’s understand 608(b) and its limitations.  The Rule allows a lawyer challenging a witness’ credibility to ask the lawyer, directly, whether the witness committed a particularly dishonest act, one that is a surrogate for proving the witness has a character flaw and is inherently dishonest.  But everyone has lied at least once, so the mere fact of a lie in one’s past is not sufficient to fall within this Rule.  And not all lies are equal – lying about an extra-marital affair have been ruled to not fall under this Rule, while lying on a grant application or collecting disability benefits while working might suffice.

So what other options remain?  The doctrine of “corruption” and the right to prove that a witness is “corrupt.”  What does that mean, and where did it come from?  It is a common law concept, explained as follows:

Wigmore defines “corruption” as “the conscious false intent which is inferable from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand.” Wigmore notes that the concept of corruption is not theoretically distinct; it is related to interest, bias, and character.  The “essential discrediting element is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony.”

In re C.B.N., 499 A.2d 1215, 1219 (D.C. 1985).  The approval of evidence of witness corruption dates at least to the time of the adoption of the Confrontation Clause. As the Connecticut Superior Court explained in 1793, a witness may be impeached with proof that he would say anything for money “as it went to lessen the weight of his testimony.”

And this is not character evidence.  As a South Carolina court explained in 1898, “Such evidence is not establishing bad character from particular facts. It is showing that the witness holds such opinions of the obligations of an oath as to render him unworthy of belief, when he had called God to witness the truth of what he asserts.”

Why write about an ancient, pre-Rules of Evidence concept today?  Because the doctrine of impeachment by corruption is alive and well, at least in the District of Columbia.  The appellate court there confirmed its vitality in a March 8 decision, Smith v. United States, No. 15-CF-677, 2018 D.C. App. LEXIS 84 (Mar. 8, 2018).  Although the majority found that the offer of proof did not establish corruption for the particular witness, it agreed that the doctrine had legs.  And the dissent was express: where there is a “well-reasoned suspicion” that the witness has lied in the court process, even in an unrelated case, the cross-examination must be allowed.

In a criminal case “corruption” cross-examination is also part of the right of Confrontation when the accused seeks to challenge prosecution witnesses.  For other witnesses in criminal cases, and in civil litigation, the doctrine may not apply if it is held that only impeachment approved by Evidence codes is permitted.  But as a concept and as a tool in the litigator’s arsenal, “corruption” impeachment can’t be ignored.