Basic Factors For Assessing Admissibility Of FRE 608(b) Evidence Of Character Or Conduct

In plaintiff’s sexual harassment suit, the plaintiff's false statement in a bankruptcy filing was excludable as collateral to the sexual harassment case; Its collateral nature stemmed from the likelihood of: (1) Diversion: Presentation of the issue at trial would have created a “mini-trial” of the collateral issue, (here, whether form filed in bankruptcy court was accurate), and (2)Duplication: The evidence was already admitted in other forms and the proffered evidence ads little to it (here, offered to show plaintiff signed forms without verifying their content, which the plaintiff had already admitted doing as to the documents directly linked to her sexual harassment litigation) in Harsco Corp. v. Renner, 475 F. 3d 1179 (10th Cir. Jan. 31, 2007) (Nos. 05-4201, 05-4216)

Like most evidence rules, FRE 608(b) governing the admission of evidence of a witness's character and conduct for truthfulness is subject to the dictates of FRE 403, which requires a judge to balance the probative value of the proffered evidence against the likelihood of unfair prejudice if the evidence is admitted. Recently, the Tenth Circuit briefly discussed the application of FRE 608(b), using two factors to guide its application of FRE 608(b).

In the case, plaintiff Renner alleged that she had been forced to leave defendant employer Harsco because of the extreme harassment suffered at the workplace because of her sex. In presenting her case, the plaintiff testified that she quit her job after making repeated attempts to elicit defendant Harsco’s assistance to stop the harassment.

During the plaintiff's testimony, she admitted that she had not read Harsco Corporation's anti-harassment materials, even though she signed a document stating that she had. She claimed that she has signed statements in the past without verifying that they were true. The defendant tried to follow up on this admission by introducing evidence that the plaintiff had “signed a form falsely stating that the proceeds from this suit were exempt from her bankruptcy proceeding.” Harsco, 475 F.3d at 1185.

The trial court excluded the defendant's evidence of the plaintiff's allegedly false bankruptcy filing. In the trial the jury found for the plaintiff. The defendant appealed contending that the exclusion of the bankruptcy filing was an error.

The circuit affirmed the exclusion of the bankruptcy filing. The circuit noted that FRE 608(b) admits evidence about a witness' specific instances of conduct for the purpose of attacking or supporting the witness' character for truthfulness. But the rule “explicitly gives the district court discretion to exclude evidence if it is not probative of truthfulness or untruthfulness” or if the “admission of such evidence” had a “probative value … 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” under FRE 403. Harsco, 475 F.3d at 1191 (quoting FRE 403)).

The circuit did not address the defendant’s contention that the bankruptcy filing should have been admitted as bearing on her untruthfulness, because “she signed it even though it contained a false statement - that the proceeds from this lawsuit were exempt from her bankruptcy creditors.” The circuit found it “clear … that the parties could have created a virtual mini-trial over whether Ms. Renner made a false statement in connection with her bankruptcy proceeding.

Moreover, the sole point defendant Harsco Corporation sought to prove by introducing the bankruptcy form filing was that Ms. Renner signed forms without verifying that their content is accurate. But Ms. Renner had already admitted this precise fact in her testimony on the stand. Accordingly, the district court properly exercised its discretion to avoid a mini-trial over a collateral issue that the plaintiff already conceded.” Harsco, 475 F.3d at 1191.

Of course, most other circuits recognize limits to FRE 608(b). For example, in sexual assault case, the Second Circuit rejected a defendant's contention that he should have been allowed to cross examine of one of the victims whose credibility was crucial to the case about whether she had lied about what had happened, as the evidence would produce “little of probative value” since the witness had already denied having lied about the incidents. United States v. v. Crowley, 318 F.3d 401, 416-17 (2d Cir. 2002).

Photo Description: Tenth Circuit Court of Appeals Courthouse in Denver, CO.

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