Distinguishing FRE 608(b) Conduct Evidence From FRE 403 "Impeachment By Contradiction"

In employment-related First Amendment case, the trial court erred by excluding, under FRE 608(b), the plaintiff's rebuttal witness's testimony to impeach by contradiction that two defense witnesses (who were also defendants) lied during cross-examination regarding their improper use of township property and granting certain people unwarranted official assistance ("favors"), the error was harmless as the jury received other evidence to "alert[ ]" them to the issue of whether the defendant witness's had lied, in Morgan v. Covington Tp., __ F.3d __ (3d Cir. August 2, 2011) (Nos. 09–2528, 09–4644)

Drawing the line between evidence that probes the character and conduct of a witness through use of "specific incidents" of misconduct under FRE 608(b) and evidence aimed at directly contradicting the witness's contentions, can be difficult to draw. A recent case of the Third Circuit explored this difference between evidence excludable under FRE 608(b) and evidence admitted as evidence of "impeachment by contradiction." Admission of the impeachment by contradiction evidence is subject to limits, not from FRE 608(b) constraints, but rather by FRE 403's balance of the probative value against the possible prejudicial impacts of the evidence.

In the case, plaintiff Morgan, a police officer, filed suit against his employer Covington municipality and its officers. He alleged that the defendants disciplined and eventually discharged the plaintiff for exercising his rights. This action came after the plaintiff had been suspended and then placed on leave and the defendant planned a hearing into the plaintiff's interference in another officer's investigation of a case. Ultimately, the plaintiff was discharged, the employer citing "conduct unbecoming an officer," and that the defendant displayed "a larger pattern of 'inefficient performance of duties.'”

At the trial of plaintiff's resulting employment action, charging that the defendant had violated the plaintiff's First Amendment rights, the trial court denied him "permission to call two rebuttal witnesses, whom he alleged would have "undermine[d]" testimony by a supervising officer (Klocko) and head of the municipality (Yerke), who had testified for the defendant. The witnesses would have been able to undermine the two witness's credibility by directly "rebutting their earlier testimony" contended the plaintiff.

The trial court excluded the testimony of these two witnesses (Van Fleet and Findeis). It did so because it deemed their testimony seemed to involve only "'collateral' issues" in the case. The trial court concluded the witnesses "were impermissible subjects of rebuttal testimony." The defendant had argued that the witness's "proffered testimony [wa]s covered by Federal Rule of Evidence 608(b), which forbids parties from proving '[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness,'" with “extrinsic evidence.”

The circuit concluded that the trial judge had erred in not allowing the plaintiff's two rebuttal witnesses to testify. One of the plaintiff's witnesses "Van Fleet[,] was to testify concerning [defendant] Yerke's personal use of Township property, in response to the latter's testimony that he had neither done so nor been ordered by a court to stop doing so." As for plaintiff's proffered second rebuttal witness (Findeis), the trial court excluded his testimony "that [defendant] Klocko had previously 'done favors'” for others. The trial transcript reflected that when specifically asked if he had sought from people in law enforcement "favors," the witness's response was that he did not "recall a specific situation."

The circuit concluded this exclusion was erroneous. As the circuit explained:

the District Court overlook[ed] the crucial fact that [plaintiff] Morgan sought to contradict specific testimony offered under oath, rather than simply to suggest that Yerke or Klocko had engaged in dishonest behavior on some other occasion. In other words, Morgan sought to engage in “impeachment by contradiction,” which is not covered by Fed.R.Evid. 608. Our Court has previously described impeachment by contradiction as “a means of policing the defendant's obligation to speak the truth in response to proper questions,” something limited by Fed.R.Evid. 403, which permits courts to exclude evidence if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Morgan, __ F.3d at __ (citations omitted).


The circuit noted several circuits that had explored the application of impeachment by contradiction. Among the circuits it cited were:

  • Third Circuit: United States v. Gilmore, 553 F.3d 266, 271 (3d Cir.2009) (noting that impeachment by contradiction was “a means of policing the defendant's obligation to speak the truth in response to proper questions,” so that it was limited to whether the witness had directly contradicted himself in his testimony; however such evidence could be excluded under the application of FRE 403) (citation and quotation marks omitted)
  • Fifth Circuit: United States v. Lopez, 979 F.2d 1024, 1033–34 (5th Cir. 1992) (noting that Rule 608 does not apply to impeachment by contradiction)
  • Ninth Circuit: United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999) (Rule 608(b) excludes only extrinsic evidence that goes to a witness's general credibility, but the doctrine of impeachment by contradiction “permits courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence”)

As the excluded testimony concerned evidence contradicting the statement made by a witness at trial, it was admissible as impeachment by contradiction. In judging its admissibility, a court would apply the standards of FRE 403. However, the error in excluding this evidence was a harmless error. As explained by the circuit, one of the defendants when testifying "... was simply too vague and attenuated for the District Court's exclusion of [plaintiff rebuttal witness] Findeis's testimony to have harmed [plaintiff]Morgan. Morgan's counsel asked very general questions about favors—not even improper favors—and Klocko's response was far from a categorical denial. Thus, even if Findeis had testified that Klocko had asked her for a favor (or asked someone else for a favor on her behalf), that testimony would not have directly contradicted Klocko." Morgan, __ F.3d at __.

The disposition of Morgan v. Covington Tp., provides a standard example of the use of impeaching a witness with his contradiction in testifying. It provides the example of the use of the doctrine to contradict a witness's denial of questions that had been posed to him on cross-examination to illustrate that the witness lack veracity For more on impeachment by contradiction, see Third Circuit Notes “Textbook” Example Of Impeachment By Contradiction.

Federal Rules of Evidence
PDF