Alaska Comm. R. Evid. 608

As amended through September 19, 2024

Rule 608 - Evidence of Character and Conduct of Witness

(a)Opinion and Reputation Evidence of Character. Rule 404(a) states the general proposition that character evidence is not admissible for the purpose of proving that a person acted in conformity therewith. That rule is subject to several exceptions, one of which is relevant here: character evidence may be admissible if it bears upon the credibility of a witness. This rule develops that exception.

In accordance with the bulk of judicial authority, the inquiry is strictly limited to character for truth and veracity rather than allowing evidence as to character generally. The result is to sharpen relevancy, to reduce surprise and confusion, and to make the lot of the witness somewhat less unattractive. See McCormick (2d ed.) § 44 and the Reporter's Comment accompanying Rule 404(a). "Attacking a witness' character is often but a feeble and ineffective contribution to the proof of the issue; and its drawbacks appear in their most emphasized form where the broader method of attack is allowed." 3 Wigmore § 923, at 728.

Character evidence in support of credibility is admissible only after the witness' character has first been attacked. See Rule 607(b). This is also in accord with the common law rule. McCormick (2d ed.) § 49, at 105; 4 Wigmore § 1104. Opinion or reputation testimony to the effect that the witness is untruthful specifically qualifies as an attack as would evidence of conviction of crime. Whether character evidence should be admitted to meet other forms of attack is, as the Reporter's Comment to Rule 607(b) suggests, best left to the discretion of the trial judge who has Rule 403 for guidance.

(b)Specific Instances of Conduct. This rule allows inquiry into specific acts of conduct of the primary witness in order to probe the knowledge of a character witness on cross-examination. The conduct inquired into must be reasonably calculated to reflect on the primary witness' truth-telling capacity. A sound exercise of judicial discretion is required here to insure that cross-examination focuses on credibility, not on the general character of the witness. Determining whether a character witness' opinion or reputation testimony is based on knowledge of the primary witness' prior conduct may be very influential in assessing the credibility of the testimony. The leading case on the general issue of testing reputation or character witnesses for knowledge of specific acts is Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168 (1948).

Rule 607(a) permits either party to impeach a witness. This rule, however, limits inquiry into specific acts when testing the knowledge of character witnesses to cross-examination. The rationale behind the limitation is to bar the direct examiner from the inquiry when "impeachment" of one's own witness becomes a disguise for using specific acts to prove character rather than the required reputation or opinion evidence. Because a party does have a choice as to character witnesses the need to impeach such witness by inquiring into specific acts should not arise. This rule follows Alaska R. Civ. P. 43(g) (11) [a], superseded by this rule.

The second sentence of this subdivision bars the use of evidence of specific incidents to impeach or support the credibility of a witness, unless otherwise provided in a rule of court or legislative enactment. See, e.g., Rule 609 (prior conviction), Rule 613 (inconsistent statement and bias). This follows Alaska R. Civ. P. 43(g) (11), superseded by this rule, and a trend in some jurisdictions to prohibit impeachment by "bad acts" other than criminal convictions. This is consistent with Rule 405 which forecloses use of evidence of specific incidents as proof of character unless character is an issue in the case. See also Uniform Rule 22(d); Kansas Rule 60-422, for similar provisions.

This subdivision departs from the Federal Rule which permits evidence of specific instances of conduct, if probative of the trait of truthfulness or untruthfulness, to support or attack a witness' credibility. The Federal Rule was adopted with little debate or attention although it expresses what was previously a minority view among the federal circuits. By eliminating this type of evidence, the need to protect witnesses against waiving their privilege against self-incrimination when examined with respect to matters relating to credibility is also eliminated.

(c)Admissibility. Because cross-examination concerning what a witness has heard or knows can be highly prejudicial, this subdivision assures that before unfair questions are asked, the trial judge is able to screen them out. The balance here is the same as under Rule 403.

Alaska Comm. R. Evid. 608