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<\/p>\nWhen 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]?\u00a0 One may turn to Federal Rule of Evidence 608(b) for a partial answer; but not all states have adopted 608(b) \u2013 Pennsylvania being one example \u2013 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.\u00a0 As one recent case makes clear, the Constitution may offer another ground for admissibility.<\/p>\n
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Before we get to that, let\u2019s understand 608(b) and its limitations.\u00a0 The Rule allows a lawyer challenging a witness\u2019 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.\u00a0 But everyone has lied at least once, so the mere fact of a lie in one\u2019s past is not sufficient to fall within this Rule.\u00a0 And not all lies are equal \u2013 lying about an extra-marital affair have been ruled to not<\/em> fall under this Rule, while lying on a grant application or collecting disability benefits while working might suffice.<\/p>\n So what other options remain?\u00a0 The doctrine of \u201ccorruption\u201d and the right to prove that a witness is \u201ccorrupt.\u201d\u00a0 What does that mean, and where did it come from?\u00a0 It is a common law concept, explained as follows:<\/p>\n Wigmore defines “corruption” as “the conscious false intent<\/em> 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. \u00a0The “essential discrediting element is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony.”<\/p>\n In re C.B.N.<\/u>, 499 A.2d 1215, 1219 (D.C. 1985).\u00a0 The approval of evidence of witness corruption<\/strong> 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.”<\/p>\n And this is not character evidence.\u00a0 As a South Carolina court explained in 1898, \u201cSuch 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.\u201d<\/p>\n Why write about an ancient, pre-Rules of Evidence concept today?\u00a0 Because the doctrine of impeachment by corruption is alive and well, at least in the District of Columbia.\u00a0 The appellate court there confirmed its vitality in a March 8 decision, Smith v. United States<\/u>, No. 15-CF-677, 2018 D.C. App. LEXIS 84 (Mar. 8, 2018).\u00a0 Although the majority found that the offer of proof did not establish corruption for the particular witness, it agreed that the doctrine had legs.\u00a0 And the dissent was express: where there is a \u201cwell-reasoned suspicion\u201d that the witness has lied in the court process, even in an unrelated case, the cross-examination must be allowed.<\/p>\n In a criminal case \u201ccorruption\u201d cross-examination is also part of the right of Confrontation when the accused seeks to challenge prosecution witnesses.\u00a0 For other witnesses in criminal cases, and in civil litigation, the doctrine may not apply if it is held that only<\/em> impeachment approved by Evidence codes is permitted.\u00a0 But as a concept and as a tool in the litigator\u2019s arsenal, \u201ccorruption\u201d impeachment can\u2019t be ignored.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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]?\u00a0 One may turn to Federal Rule of Evidence 608(b) for a partial answer; but not all states have adopted 608(b) \u2013 Pennsylvania being one example \u2013<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2159","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n