Rule 608 Evidence of character and conduct of witness. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness, and

(2) 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.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, if probative of untruthfulness, may be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence. When a witness testifies to the character of another witness under subsection (a), relevant specific instances of the other witness' conduct may be inquired into on cross-examination but may not be proved by extrinsic evidence.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility. [L 1980, c 164, pt of 1; gen ch 1985; am L 1992, c 191, 2(6); am L 1993, c 6, 25 and c 198, 1(1)]

 

RULE 608 COMMENTARY

 

This rule is identical with Fed. R. Evid. 608 except that this rule contains, in subsection (b), the added language, "and bias, interest or motive as provided in rule 609.1." This added language does not modify the intended effect of Fed. R. Evid. 608, because the Advisory Committee's Note to that rule points out that evidence of bias or interest is not considered "character" evidence. This rule is simply more explicit.

Subsection (a): This provides for admissibility of opinion or reputation evidence relevant to a witness' general character for veracity, and thus constitutes a specific exception to the general prohibition in Rule 404(a) of character evidence as proof of propensity or behavior in conformity with such character. In accordance with previous law on the subject, evidence of a reputation for truthfulness offered to bolster credibility is admissible only to rebut an attack on the witness' veracity. See Brown v. Walker, 24 H. 285, 291 (1918). According to the rule, only a character attack "by opinion or reputation evidence or otherwise" will qualify. The Advisory Committee's Note to Fed. R. Evid. 608(a) points out: "Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not."

Consistent with this rule, the Hawaii courts have held that evidence of character for veracity must address itself expressly to the character of the witness for truthfulness, not to some collateral trait of character. In Republic of Hawaii v. Tokuji, 9 H. 548, 552 (1894), the court said: "Evidence to be admissible for the purpose of affecting the credibility of a witness must be such as bears directly upon his character for truth and veracity."

Subsection (b): This allows cross-examination of the witness relative to specific collateral conduct to the extent that such conduct is relevant to veracity. Such conduct may not be independently proved even if the witness expressly denies it. Previous law was to the same effect, see Territory v. Goo Wan Hoy, 24 H. 721, 727 (1919), where the court said:

The rules of evidence do not allow specific acts of misconduct or specific facts of a disgraceful or criminal character to be proved against a witness by others but it has been held by this court that a witness may be specially interrogated upon cross-examination in regard to any vicious or criminal act in his life and may be compelled to answer unless he claims the privilege.

See also Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 412 P.2d 669 (1966); Republic of Hawaii v. Luning, 11 H. 390 (1898).

The rule also applies to any defendant who elects to testify. In State v. Pokini, 57 H. 17, 22-23, 548 P.2d 1397, 1400-01 (1976), the court observed: "[O]nce having taken the witness stand in his behalf, the defendant may be cross-examined on collateral matters bearing upon his credibility, the same as any other witness.... The defendant may be asked questions regarding his occupation or employment.... But there are obvious limitations beyond which the court may not allow the examiner to venture. The subject matter of the inquiry must have some rational bearing upon the defendant's capacity for truth and veracity.... And where the testimony sought to be elicited is of minimal value on the issue of credibility and comes into direct conflict with the defendant's right to a fair trial, the right of cross-examination into those areas must yield to the overriding requirements of due process. See State v. Santiago, 53 H. 254, 492 P.2d 657 (1971)...." In other words, the express limitation of Rule 609(a) governs when the misconduct involves an allegation of prior crime.

 

RULE 608 SUPPLEMENTAL COMMENTARY

 

Subsection (a) of this rule is identical with Fed. R. Evid. 608(a), and the commentary to subsection (a) is the original 1980 commentary. Subsection (b) was substantially amended by Act 191, Session Laws 1992, and the subsection (b) commentary has been rewritten to explain the operation of the new rule.

Subsection (b): This allows cross-examination of a witness concerning specific instances of conduct that are relevant to the trait of credibility. The first sentence governs attack of a witness by revelation of that witness' relevant misdeeds. The second sentence governs cross-examination of a witness who testifies to the character of another witness under subsection (a). The 1992 amendment is not intended to modify rulings requiring that Rule 608(b) material have specific relevance to the trait of truthfulness, e.g., State v. Estrada, 69 H. 204, 738 P.2d 812 (1987); State v. Reiger, 64 H. 510, 644 P.2d 959 (1982); State v. Sugimoto, 62 H. 259, 614 P.2d 386 (1980); Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 412 P.2d 669 (1966); State v. Faulkner, 1 H. App. 651, 624 P.2d 940 (1981).

Regarding the first sentence, that is, the witness' own prior misdeeds, the previous law envisioned cross-examination but barred proof in the form of extrinsic evidence even when the witness denied having committed the prior acts sought to be attributed, e.g., Cozine v. Hawaiian Catamaran, Ltd., supra, 49 H. at 102, 412 P.2d at 686. The extrinsic evidence bar, although it afforded an easily applied, bright-line solution to a difficult problem, occasionally excluded probative impeaching evidence that would have survived a Rule 403 analysis. For that reason, the rule has been questioned in some recent scholarship, e.g., R. Lempert & S. Saltzburg, A Modern Approach to Evidence 299 (2d ed. 1982). Some Rule 608(b) material is highly relevant to the issue of testimonial credibility, e.g., State v. Estrada, supra (witness, in recent application for employment as Maui police officer, stated he resigned from the Honolulu police force because he wanted to move to Maui; but Honolulu police report would have revealed he was permitted to resign after having been discovered to have proposed sex to a prostitute he arrested and to have failed to report a bribe attempt by the same prostitute). The intent of the 1992 amendment to Rule 608(b) is to invest the trial judge with discretion to admit the extrinsic evidence in such a case, assuming the witness is confronted on cross-examination and denies the material.

If the witness admits on cross-examination having committed the prior misdeed, then there is no need for the extrinsic evidence and Rule 403 will exclude it. Even if the witness denies the material, the Rule 403 balance is expected to dictate exclusion in a substantial number of cases. After all, the previous blanket ban was purportedly informed by Rule 403. But if the probative value of the extrinsic evidence of specific prior misdeeds is not substantially outweighed by the negative Rule 403 factors, it is admissible "in the discretion of the court."

The second sentence of Rule 608(b) preserves the extrinsic evidence bar when the witness in question is a Rule 608(a) witness, testifying to the character for veracity of some other witness, and the specific conduct is that of the other witness.

 

Case Notes

 

Appellate review of trial court's exclusion of evidence under rule. 5 H. App. 251, 687 P.2d 554 (1984).

Where complainant's character for truthfulness was attacked when defense counsel vigorously cross-examined complainant about prior inconsistent statements to grand jury and whether complainant ever lied before, bolstering character evidence under subsection (a) properly allowed. 85 H. 417 (App.), 945 P.2d 849 (1997).

Trial court did not err in excluding evidence of witness' alleged involvement in a gang where defendant failed to explain how witness' involvement in gang activity goes to the issue of truthfulness. 108 H. 102 (App.), 117 P.3d 834 (2005).

Where defendant's past conduct when passing complainant on the road was not "probative of untruthfulness" under subsection (b), it was error for trial court to admit such evidence for the purpose of attacking defendant's credibility, to allow the State to inquire about such conduct in the cross-examination of defendant, and to admit testimony of complainant as to this conduct; as there was a reasonable probability that error in admitting "prior bad acts" testimony contributed to conviction, error was not harmless beyond a reasonable doubt. 110 H. 116 (App.), 129 P.3d 1144 (2005).

Mentioned: 74 H. 54, 837 P.2d 1298 (1992).

 

 

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