NCJ Number
142164
Journal
Criminal Justice Volume: 8 Issue: 1 Dated: (Spring 1993) Pages: 35-38
Date Published
1993
Length
4 pages
Annotation
This article examines the relationship between "uncharged acts" offered on the issues of guilt and innocence and prior acts that are the subject of questioning for the purpose of impeaching the credibility of the witness (defendant).
Abstract
The basic distinction between evidence offered under FRE 404(b) of the Federal Rules of Evidence and witness impeachment attempted under FRE 608(b)(1) is that evidence generally is offered under the former rule as affirmative proof of a disputed issue; whereas, evidence may be offered under the latter rule only to impeach a witness. In United States v. Gay (Ninth Circuit, 1992), the defendant claimed on appeal that the trial judge erred in admitting on cross- examination a prior civil injunction issued against Gay in connection with another organization. The confusion in "Gay" arises because the court of appeals believed it had to justify the prosecutor's impeachment of Gay on some basis, and it chose FRE 404(b) as the justification. Had it realized that the prosecutor was entitled, as a basic part of relevance and cross-examination, to explore any unfair, untrue, or misleading statement made by a defense witness, including the defendant, it would have had no need to cite FRE 404(b). It is neither necessary nor helpful to say that FRE 404(b) evidence "may be used for impeachment purposes." If evidence is admissible under FRE 404(b), generally it is admissible whether or not a witness testifies in a particular way. If a witness volunteers a false statement, the government or the defense generally has a right to demonstrate that the statement is untrue.