Article VI. Witnesses

219

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) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.

(b) Specific Instances of Conduct - Specific instances of conduct of a witness for the purpose of attacking or supporting the witness's character for truthfulness, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination about such conduct probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the jury's presence and must determine that the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry;

(2) The conduct must have occurred no more than ten years before commencement of the action or prosecution, but evidence of a specific instance of conduct not qualifying under this paragraph (2) is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of that evidence, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

 (3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conduct before trial, and the court upon request must determine that the conduct's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the witness's privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.

(c) Juvenile Conduct - Evidence of specific instances of conduct of a witness committed while the witness was a juvenile is generally not admissible under this rule. The court may, however, allow evidence of such conduct of a witness other than the accused in a criminal case if the conduct would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination in a civil action or criminal proceeding.

[As amended by order entered January 25, 1991, effective July 1, 199, and by order filed January 6, 2005, effective July 1, 2005.]

Advisory Commission Comments.

Part (a) admits opinion as well as community reputation to prove character. Presently Tennessee restricts proof to reputation evidence. Ford v. Ford, 26 Tenn. 91, 100-01 (1846). The proposed change is minimal, however, because Tennessee has allowed a character witness on the credibility issue to opine that the fact witness should or should not be believed. Ford v. Ford, 26 Tenn. 92, 102 (1846).

Part (b) reflects the Supreme Court's view of impeachment by prior bad acts. State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), incorporated F.R.Evid. 608(b) into Tennessee case law. The proposed rule is even more specific than the federal version. It requires a jury-out hearing on probative value and basis for cross-examination, relatively recent misconduct, and notice plus analytical weighing of probative value versus unfair prejudice.

To the extent that State v. Caruthers, 676 S.W.2d 936 (Tenn. 1984), can be construed as allowing cross-examination about a prior act of rape to impeach, the proposal would change that result.

If the witness makes a sweeping claim of good conduct on direct examination, that claim may open the door to cross-examination without pretrial notice and with a lower standard of probativeness, as rebuttal of the broad claim would itself tend to show untruthfulness. Also, there may be instances where the prosecution would not discover the accused's bad acts until after the trial begins, making pretrial notice impossible; in such cases immediate notice and a hearing on the issue before the accused testifies should satisfy the spirit of the rule.

Note that the accused's failure to take the stand in face of an adverse ruling on admissibility of a prior bad act does not waive the right to assign error on appeal.

Part (c) conforms juvenile bad acts admissibility to the principles used with juvenile adjudications. See Rule 609(d).

Advisory Commission Comments [1991].

This is a technical amendment.

Advisory Commission Comments [2005].

Substituting “character for truthfulness” in place of “credibility” at the beginning and end of Rule 608(b) clarifies that contradiction impeachment by extrinsic evidence is permissible.

Back to Top