Alaska R. Evid. 608 commentary

(a)0Opinion 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 ensure 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.