By John DiMotto
A powerful method of impeaching or rehabilitating the credibility of a witness -- but which is oftentimes overlooked or avoided -- is the introduction of character evidence in the form of opinion or reputation of the untruthfulness or truthfulness of a witness. This method of impeachment or rehabilitation requires the proponent of such evidence to understand the parameters of 906.08 and to be familiar with the case law that explains its use.
906.08(1)(a) sets forth that the credibility of a witness may be attacked or supported by evidence in the form of reputation OR opinion that refers to character for truthfulness or untruthfulness. 906.08(1)(b) sets forth that, except with respect to an accused who testifies in his/her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Finally, 906.08(2) provides that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than [906.09 circumstances] may not be proved by extrinsic evidence. However, specific instances of conduct, if probative of truthfulness or untruthfulness and not remote in time, maybe inquired into on cross-examination of the witness or cross examination of the witness who testifies to his/her own character for truthfulness or untruthfulness.
From 906.08 we receive the following "bright line" rules:
1) Evidence of a witness's character for truthfulness or untruthfulness can be elicited by reputation OR opinion.
2) Only an accused in a criminal case can elicit evidence of his/her character for truthfulness BEFORE there is an attack.
3) Once a witness's character for truthfulness is attacked by reputation or opinion testimony, evidence of the witness's character for truthfulness may be introduced.
4) Specific instances of conduct bearing upon character for truthfulness or untruthfulness to attack or support credibility can be inquired into on cross examination but may NOT be proved by extrinsic evidence.
Case law gives us further insight as to what evidence is admissible.
906.08 was a major change in Wisconsin law and a return to early 19th century Wisconsin cases that permitted opinion evidenced in special instances. Opinion evidence is not geographically limited and does not require foundation that the witness giving the opinion is familiar with the community of the person at issue. Furthermore, there is no requirement that the witness giving the opinion testimony have a long acquaintance or have recent information since cross examination can expose lack of familiarity. However, opinion evidence regarding character for truthfulness is not automatically admissible. If the witness lacks personal knowledge or if there are 904.03 concerns, the evidence can be prohibited. see State v. Cuyler, 110 Wis.2d 133 (1983); State v. Gonzalez, 2010 WI App ___ (recommended for publication).
Most contradictions in testimony do not put a witness's character for truthfulness in issue. There is a difference between credibility and character for truthfulness. However, where the nature of the defense and tone of the examination as a whole puts a witness's character for truthfulness in issue, the court may allow supportive rehabilitation character evidence. see State v. Anderson, 163 Wis.2d 342 (Ct. App. 1991).
It is not absolute that a person must testify before the person's character for truthfulness be attacked. If a hearsay statement is admitted, the hearsay declarant's credibility is open to attack by evidence that would be admissible if the declarant had testified. However, specific instances of conduct may not be proved by extrinsic evidence. see State v. Evans, 187 Wis.2d 66 (Ct. App. 1994).
An attack in opening statement on the character of a witness for truthfulness opens the door for rehabilitative evidence even before the witness testifies. see State v. Eugenio, 219 Wis.2d 391 (1998). Asking a witness if he/she lied is an attack on character for truthfulness. see State v. Tutlewski, 231 Wis.2d 379 (Ct. App. 1999).
In terms of cross examination of a witness with respect to specific instances of conduct, it is important to keep in mind that the cross examiner is "stuck" with whatever answer is given by the witness. Even if the cross examiner has positive evidence that the witness has lied, it cannot be introduced via another source since this would be extrinsic evidence which is not admissible under 906.08(2). see State v. Rognrud, 156 Wis.2d 783 (Ct. App. 1990).
Finally, it must be noted that introducing evidence as to "character" for truthfulness or untruthfulness is not testimony or evidence that a person IS telling the truth. Case law is clear that no witness may testify that another witness did or did not tell the truth in the proceedings or with respect to the event in question. Evidence as to "character" is not evidence that the witness did or did not tell truth in this case. It is only general character evidence so the jury can assess the overall credibility of the witness.
In my next blog with respect to impeachment and rehabilitation evidence, I will look at the parameters of Character Evidence for "Good and Evil."