FRE 404(a)(3), 607, 608

Rule 404(a)(3) allows a party to present evidence regarding the character of a witness in accordance with Rules 607–609. To be pertinent, the evidence must go against the witness’s character for truth-telling. 608(a) allows a party to present character for truthfulness in the form of reputation or opinion and must be focused only on truthfulness. Additionally, 608(b) allows a party on cross-examination to question specific instances (again limited to truthfulness, and not by extrinsic evidence. The witness also is protected from harassment or undue embarrassment. 611(a)(3). Finally, courts are unwilling to admit evidence under 608 if it would be inadmissible under 609.).

United States v. Whitmore

359 F.3d 609 (D.C. Cir. 2004).

Whitmore was approached by officers and began to flee. Officer Soto joined in the chase and testified that he saw Whitmore discard a weapon. He was the only one to see the weapon discarded and discover the weapon with signs of damage. Whitmore now seeks to attack the credibility of the officer by showing that the officer had (1) a reputation for lying and (2) cross-examination of specific instances that go against his honesty. The trail court denied both opportunities.

On appeal, the court agrees that the trial court was correct in excluding reputation and opinion evidence because the witnesses were too disconnected from the officers to give much probative value (excluded on 403 grounds). However, the defendant should have been allowed to cross-examine the officer related to a suspension of his driver’s license and failure to make child-support payments because they went towards his honesty. Thus, the case needs to be reversed and remanded for a new trial.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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