CRE 608

History

(Federal Rule Identical.) Source: (b) amended September 29, 2005, effective January 1, 2006. ANNOTATION Law reviews. For article, ‘‘Hearsay in Crimi- nal Cases Under the Colorado Rules of Evi- dence: An Overview’’, see 50 U. Colo. L. Rev. 277 (1979). For article, ‘‘Impeachment’’, see 22 Colo. Law. 1207 (1993). For article, ‘‘C.R.E. 608(b): Challenging Witness Credibility’’, see 29 Colo. Law. 99 (July 2000). For article, ‘‘Ad- missibility of Testimony Concerning the Truth- fulness or Untruthfulness of a Witness’’, see 35 Colo. Law. 37 (Dec. 2006). Common-law rule. Prior to the adoption of the Colorado rules of evidence, Colorado ad- hered to the general rule that evidence of mis- deeds was inadmissible for the purpose of at- tacking a witness’s character in regard to his truthfulness. People v. Saldana, 670 P.2d 14 (Colo. App. 1983). While this rule allows for extrinsic evidence under certain circumstances, the adoption of this rule has not materially altered the previ- ously established general rule. People v. Saldana, 670 P.2d 14 (Colo. App. 1983). Right to confront and cross-examine wit- nesses not absolute. An accused’s constitu- tional right to confront and to cross-examine witnesses is not absolute and may be limited to accommodate other legitimate interests in the criminal trial process. People v. Cole, 654 P.2d 830 (Colo. 1982). Trial court properly limited cross-examina- tion where answers sought by defendant in- volved cumulative or collateral testimony con- cerning co-defendant’s credibility and were only marginally related to commission of charged crime. People v. Ray, 109 P.3d 996 (Colo. App. 2004). The trial court did not abuse its discretion in limiting the cross-examination related to a witness’s felony conviction. The record shows the jury had ample information about the felony conviction and background to assess the wit- ness’s credibility. People v. Lane, 2014 COA 48, 343 P.3d 1019. Bias on the part of a witness is a state of mind and only those demands which can influ- ence the mind at the moment of testifying are relevant to a demonstration of bias. People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973). Impeachment inquiry directed to witness’s credibility, not character. In impeaching a wit- ness, the inquiry ought to be directed to the witness’s credibility rather than to his moral character. People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972). Rule applies only to the admissibility of character evidence. Proffered evidence of whether a witness was testifying truthfully in the case did not constitute a general character attack on witness. People v. Hall, 107 P.3d 1073 (Colo. App. 2004). Cross-examination held to be proper at- tack upon witness’s credibility, not his charac- ter. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). The exclusion of proper opinion testimony is harmless where the defense can fully cross- examine the witness whose credibility was to be impeached, and where that witness’s credibility was otherwise impeached through the testifying witness. People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d on other grounds, 2013 CO 57, 310 P.3d 58 (Colo. 2013). Defendant who takes witness stand is sub- ject to same tests of credibility as any other witness. People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973). Trial court did not err by admitting extrin- sic evidence of defendant’s audiotaped state- ment to rebut his testimony. It is well estab- lished that evidence may be introduced that specifically contradicts a defendant’s direct tes- timony. By making statements on redirect ex- amination that contradicted his testimony dur- ing cross-examination, defendant opened the door to the extrinsic evidence to contradict his statements on cross-examination. People v. Thomas, 2014 COA 64, 345 P.3d 959. Defendant may be examined on previous felony convictions. A defendant who elects to be a witness in his own behalf in a criminal case subjects his credibility to question, like any other witness, and he may therefore be exam- ined on the matter of previous felony convic- tions. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Nature of particular crime for which de- fendant was convicted. Although evidence of prior felony convictions is admissible to im- peach a defendant who voluntarily takes the stand and testifies in his own behalf, such an inquiry is not confined to the mere fact of the conviction of some crime, but the nature or name of the particular crime of which the wit- ness was convicted may be brought out. Mays v. People, 177 Colo. 92, 493 P.2d 4 (1972). Where defendant testifies, motion to sup- press prior conviction denied. The denial of the defendant’s motion to suppress his prior felony conviction is proper where the defendant takes the witness stand to testify. People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973). Where, before the defendant testifies in his defense, he moves that the court prohibit the prosecution from showing on cross-examination that he has been previously convicted of a felony, the court correctly denies the motion to suppress as it is without discretion to prohibit such evidence. People v. Bueno, 183 Colo. 304, 516 P.2d 434 (1973). Defendant’s past crimes may be used to discredit defendant’s witness. Where a defen- dant places a psychiatrist on the stand to testify that the defendant is a person unlikely to com- mit the crime in question, it is not error to permit the district attorney, in an effort to dis- credit this testimony, to refer to the defendant’s past criminal behavior in an effort to discredit the psychiatrist’s testimony during cross-exami- nation of the psychiatrist. People v. Pacheco, 180 Colo. 39, 502 P.2d 70 (1972). Prosecutor must ask impeachment ques- tions in good faith. The prosecutor may in cross-examination ask the witness if he has been convicted of a felony, but he must ask the question in good faith. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Judge to determine good faith. When pros- ecutors are about to impeach witnesses by rea- son of former felonies, they should advise the judge on what background they will propound questions, and the judge must determine, within his discretion, whether good faith is present. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Where defendant denies prior felony con- victions, counsel to make offer of proof. The only way that counsel can establish good faith in asking questions about prior felonies if the defendant denies any prior felony convictions is to make an offer of proof to the court. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Proof not necessary where defendant ad- mits prior convictions. When a defendant ex- ercises his statutory privilege of testifying, all prior felony convictions and their nature may be shown to impeach his testimony, and where a defendant admits any prior convictions, proof thereof is not necessary. Candelaria v. People, 177 Colo. 136, 493 P.2d 355 (1972). Felony inquiry reversible error where prosecution knows there are no prior convic- tions. Asking the defendant, who has taken the stand in his own defense, whether he has ever been arrested for a felony when the district attorney knows that there is no prior felony conviction is reversible error. People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973). Use of void prior convictions need not re- quire reversal. The error implicit in the use of void prior convictions for impeachment pur- poses need not necessarily require reversal, par- ticularly where the error is found to be harmless beyond a reasonable doubt. People v. Neal, 187 Colo. 12, 528 P.2d 220 (1974). Trial court did not abuse its discretion in limiting cross-examination of specific details related to witness’s prior conviction. The de- fense had already established defendant’s previ- ous criminal conduct and the number of times defendant had been dishonest with the police. The factual details underlying defendant’s pre- vious conviction were collateral matters with little probative force, and the jury had sufficient information to determine the witness’s credibil- ity. People v. Clark, 2015 COA 44, 370 P.3d 197. Limiting instruction required. When prior felony convictions are elicited during defen- dant’s testimony, a limiting instruction is re- quired. People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973). Drug abuse by witness excluded. Where testimony concerning alleged drug abuse by the witness was irrelevant, the trial court does not abuse its discretion in refusing to allow the questioning. People v. St. John, 668 P.2d 988 (Colo. App. 1983). Generally, witness cannot be impeached by acts of ‘‘bad character’’. Generally, impeach- ment of a witness’s character is confined to showing former convictions of a felony, but not acts or occurrences which show ‘‘bad charac- ter’’. People v. Barker, 189 Colo. 148, 538 P.2d 109 (1975). It is improper to impeach a witness with convictions short of felonies, but absent a con- temporaneous objection, this error is not revers- ible. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975). Impeachment of witnesses with questions concerning arrests is generally prohibited. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Evidence of witness’s plea agreements in prior, unrelated cases was properly excluded. People v. Fears, 962 P.2d 272 (Colo. App. 1997). Questions on arrests allowed on recross where arrest record put in evidence. Where on redirect examination, an attempt is made to restore a witness’s credibility, and the defense counsel asks the witness if he has been in any further trouble since a misdemeanor conviction, and the witness responds that he has been in jail a few times, but that he had been mistakenly arrested for aggravated assault, the prosecutor on recross-examination is properly permitted to explore the arrest record of the witness. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975). Where hostility of witness not shown, re- stricted examination allowed. The court does not err in restricting examination of a police detective whom the defendant calls as his own witness, on the basis that the officer is a hostile witness, where no foundation is shown that the officer is in fact a hostile witness. People v. Y ork, 189 Colo. 16, 537 P.2d 294 (1975). Witness giving a character opinion is not required to have long-term acquaintance with witness to be impeached. Honey v. People, 713 P.2d 1300 (Colo. 1986). Testimony which referred to a specific oc- casion of truthfulness and which did not ex- press an opinion as to character may not be admitted under this rule. People v. Koon, 713 P.2d 410 (Colo. App. 1985); People v. Ross, 745 P.2d 277 (Colo. App. 1987). Such testimony constitutes reversible error and requires a new trial. People v. Oliver, 745 P.2d 222 (Colo. 1987). Evidence of prior misdemeanor convic- tions involving false statements to police held admissible for impeachment purposes where focus was on the specific instances of lying, not on the convictions themselves, and jury was instructed to consider the evidence only for the limited purpose of evaluating defendant’s cred- ibility. People v. Gillis, 883 P.2d 554 (Colo. App. 1994). Evidence of misdemeanor shoplifting is not admissible under section (b). Although shoplifting involves a form of dishonesty, a disregard of property rights of others is not probative of a propensity to be truthful or un- truthful. People v. Jones, 971 P.2d 243 (Colo. App. 1998), overruled in People v. Segovia, 196 P.3d 1126 (Colo. 2008). Shoplifting is a specific instance of conduct that is probative of truthfulness pursuant to sec- tion (b). People v. Segovia, 196 P.3d 1126 (Colo. 2008) (overruling People v. Jones, 971 P.2d 243 (Colo. App. 1998)). Because theft generally is not probative of character for truthfulness, exclusion of evi- dence of theft by prosecution witness did not constitute abuse of discretion by trial court. People v. Knight, 167 P.3d 141 (Colo. App. 2006). Trial court did not abuse its discretion by ruling that evidence of check fraud was ad- missible, because check fraud involved taking property in a fraudulent manner and was proba- tive of character for truthfulness. McGill v. DIA Airport Parking, LLC, 2016 COA 165, 395 P.3d 1153. Trial court did not abuse its discretion by excluding statements related to a 10-year-old felony shoplifting incident. Because of the re- moteness of the incident and its dissimilarity with the case at hand, admission of the evidence would have caused undue delay, waste of time, and confusion and was properly excluded under C.R.E. 403. People v. Williams, 89 P.3d 492 (Colo. App. 2003). A trial court has discretion to exclude evi- dence under section (b) of this rule on C.R.E. 403 grounds. Because the subject of the wit- ness’s prior narcotics arrest raised a collateral issue, the trial court acted within the range of permissible choices in precluding defendant from asking the witness whether she had been truthful in her prior statements on that subject. People v. Wilson, 2014 COA 114, 356 P.3d 956. Rape trauma syndrome evidence generally inadmissible to determine whether an adult woman was in fact raped. However, in cases involving child incest victims, upon proper foundation, evidence of incest victim psychol- ogy may be admitted. People v. Koon, 724 P.2d 1367 (Colo. App. 1986); People v. Lucero, 724 P.2d 1374 (Colo. App. 1986). Expert’s evaluation of victim inadmissible. Where the credibility of a child victim for truth and veracity has not been attacked, the admis- sion of the testimony of a clinical psychologist, who has been appointed by the court for a competency evaluation of the victim, is error. People v. Ortega, 672 P.2d 215 (Colo. App. 1983). Where the credibility of a child victim for truth and veracity has not been attacked, the admission of the testimony of a social worker as to the truth and veracity of child victims in general is prejudicial error. People v. Snook, 729 P.2d 1026 (Colo. App. 1986), aff’d, 745 P.2d 647 (Colo. 1987). Interviewer’s and mother’s statements re- garding child victims’ testimony improperly bolstered the children’s credibility and led to the impermissible inference that the children were telling the truth about the incident. V enalonzo v. People, 2017 CO 9, 388 P.3d 868. Pediatrician’s statement concerning believ- ability of child-victim statements violated this rule but was harmless error. People v. Gaffney, 769 P.2d 1081 (Colo. 1989). Social worker’s lay statement concerning sincerity of child-victim’s statements violated this rule because the statement constituted im- permissible character testimony. However, ad- mission of statement was not plain error. People v. Eppens, 979 P.2d 14 (Colo. 1999). Admission of the social worker’s statement was not error where the child-victim herself testified and was vigorously cross-examined, the social worker testified as a lay witness, and the statement was corroborated by the testi- mony of the child-victim’s examining physi- cian. People v. Eppens, 979 P.2d 14 (Colo. 1999). Testimony by police officer that witnesses seemed sincere was improper. People v. Hall, 107 P.3d 1073 (Colo. App. 2004). Admission of investigating officer’s testi- mony that victims were credible so under- mined the fundamental fairness of the trial that serious doubt existed as to the reliability of the judgment of conviction, especially where there was an insufficient quantum and quality of other evidence and independent corroborating evi- dence of guilt. People v. Cook, 197 P.3d 269 (Colo. App. 2008). Prosecutor asking investigating detective’s opinion on consistency of another witness’s testimony and their witness statement was improper but did not rise to the level of plain error. Because the question was not ‘‘flagrant or glaringly or tremendously improper’’, the detective did not testify about whether the wit- ness had testified truthfully, and the detective’s equivocal response mitigated any prejudice, the testimony did not so undermine the fundamen- tal fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Bobian, 2019 COA 183, 461 P.3d 643. Evidence referencing victim’s credibility is admissible when describing a technique used to interrogate a suspect and to explain the context in which a suspect’s statements are made. People v. Lopez, 129 P.3d 1061 (Colo. App. 2005). Admission of statements by witnesses com- menting on other witnesses’ veracity not er- ror where comments were elicited to explain police officers’ investigative techniques and to rebut defense arguments. People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d, 2013 CO 57, 310 P.3d 58 (Colo. 2013). A law enforcement officer may testify about the officer’s assessments of interviewee credibility when that testimony is offered to provide context for the officer’s interrogation tactics. People v. Conyac, 2014 COA 8M, 361 P.3d 1005. Officer’s testimony not improper commen- tary on defendant’s credibility, but instead an explanation of officer’s interview tactics that were brought into question by defendant’s alle- gation that confession was coerced and a prod- uct of what defendant believed police wanted to hear. People v. Conyac, 2014 COA 8M, 361 P.3d 1005. Where defendant attacks victim’s credibil- ity, testimony regarding victim’s truthfulness is admissible. People v. Exline, 775 P.2d 48 (Colo. App. 1988), 985 F.2d 487 (10th Cir. 1993). Questioning of a defendant’s credibility while on the witness stand does not necessar- ily constitute an attack on that defendant’s character for truthfulness for purposes of in- troducing character evidence under the rule. Whether a witness’s character is attacked will always depend on the circumstances of a par- ticular case. People v. Miller, 890 P.2d 84 (Colo. 1995). The mere contradiction of the testimony of the defendant by another witness does not constitute an attack on the character of the defendant such that the defendant may intro- duce opinion evidence as to his truthful charac- ter. People v. Wheatley, 805 P.2d 1148 (Colo. App. 1990). Because defense counsel’s cross-examina- tion of the victim did not amount to an at- tack on her character for truthfulness, testi- mony that she was a truthful person was inadmissible. Questions during cross-examina- tion that imply a witness’s testimony is not credible, such as emphasizing that the witness is under oath or has potential motives to lie or sources of bias, or questioning his or her failure to disclose information to the police are not necessarily attacks on a witness’s character for truthfulness. The questions must do more than attack the truthfulness of testimony, but attack a witness’s general propensity to tell the truth. People v. Serra, 2015 COA 130, 361 P.3d 1122. Questions of witnesses whether they took seriously their oath to testify truthfully and if they were telling the truth, where such wit- nesses were not asked if other witnesses or parties were telling the truth, although of lim- ited probative value, does not constitute im- proper bolstering and do not constitute plain error. People v. Lee, 989 P.2d 777 (Colo. App. 1999). Trial court erred in admitting into evi- dence the opinion of a social services intake worker that a child was being truthful in reporting the alleged sexual assault by the de- fendant on the occasion in question. People v. Eppens, 948 P.2d 20 (Colo. App. 1997), rev’d on other grounds, 979 P.2d 14 (Colo. 1999). Evidence inadmissible where prosecutor did not seek to elicit opinion or reputation evidence from witness about child victim’s general character for truthfulness; rather, prosecutor elicited, on direct examination of the witness, evidence of victim’s specific veracity habit and its application to a specific occasion. People v. Cernazanu, 2015 COA 122, 410 P.3d 603. No abuse of discretion or violation of de- fendant’s confrontation right in trial court’s decision to limit cross-examination. People v. Sweeney, 78 P.3d 1133 (Colo. App. 2003). Judge who presided over earlier proceed- ings may testify in rebuttal as to defendant’s truthfulness. Where defendant testified to events leading to his arrest for taking children in violation of court order, the judge who pre- sided over divorce could testify as rebuttal wit- ness as to character of defendant for truthful- ness. People v. Tippett, 733 P.2d 1183 (Colo. 1987). Unproven accusations, by themselves, do not raise an inference of improper actions. People v. Pratt, 759 P.2d 676 (Colo. 1988). Opinion and reputation evidence of character is admissible as long as the evidence refers only to character for truthfulness or untruthfulness and that element of witness’s character has been attacked. People v. Woertman, 786 P.2d 443 (Colo. App. 1989); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). A stipulation concerning allegations of un- professional conduct of a physician does not constitute a finding of misconduct by the medical board. Therefore, court did not abuse its discretion in limiting cross-examination of doctor who conducted competency evaluation of criminal defendant. People v. Thomas, 962 P.2d 263 (Colo. App. 1997). Evidence of witness’s general character was properly disallowed where the evidence was not limited to the witness’s truthfulness and veracity. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992). The advisement by the trial court of the defendant’s right to testify was inadequate when the court failed to inform defendant that the decision to testify was personal to the de- fendant and failed to advise defendant as to the limited evidentiary use of any admission by the defendant. People v. Chavez, 832 P.2d 1026 (Colo. App. 1991), aff’d, 853 P.2d 1149 (Colo. 1993). Opinion testimony regarding a witness’s truthfulness on a specific occasion rather than to the witness’s general character for truthful- ness is inadmissible. People v. Ayala, 919 P.2d 830 (Colo. App. 1995). Reversible error for forensic interviewer to state in response to jury questions that he concluded that the victim had not been coached or that the victim or witness did not come across as coached. An interviewer may not usurp the jury’s role of assessing the cred- ibility of a witness’s statement by offering an ultimate conclusion about the statement’s truth- fulness. The error was not harmless because the credibility of the witnesses, particularly in the forensic interviews, was the central issue in the case. People v. Bridges, 2014 COA 65, 410 P.3d 512. ‘‘Were they lying?’’ type questions are cat- egorically improper. Witnesses are prohibited from commenting on the veracity of another witness, because such opinions are prejudicial, argumentative, and ultimately invade the prov- ince of the fact-finder. Such concerns outweigh any potential or supposed probative value elic- ited by the question. Liggett v. People, 135 P.3d 725 (Colo. 2006). Therapist’s testimony about children fab- ricating sexual assault allegations did not serve any purpose other than to attempt to influence the jury’s credibility determina- tions and was admitted in error. The error was not plain since it was not obvious and there was substantial evidence of defendant’s guilt. People v. Relaford, 2016 COA 99, 409 P.3d 490. Trial court properly precluded cross-ex- amination on crime of bigamy to impeach a witness’ credibility in a criminal eavesdrop- ping prosecution. The court determined that even if bigamy were an offense relating to truth- fulness, the witness had been neither convicted, arrested, nor charged with such offense, and there was no evidence of an agreement by the prosecution not to file such charges against the witness in exchange for his testimony. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Evidence of defendant’s intentional failure to file tax returns for multiple years is admis- sible and probative of defendant’s character for truthfulness, provided that the probative value of the evidence is not outweighed by the danger of unfair prejudice under C.R.E. 403. Leaf v. Beihoffer, 2014 COA 117, 338 P.3d 1136. Even if it were in the trial court’s discretion to permit questioning of the witness as to the act of bigamy, it was also within the court’s discretion to exclude the questioning as being more prejudicial than probative. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Trial court abused its discretion by allow- ing the prosecutor to ask defendant on cross- examination, in the presence of the jury, a question unrelated to any topic addressed during direct examination that the trial court and the prosecutor knew defendant would re- spond to by invoking his right against self- incrimination. People v. Sauser, 2020 COA 174, 490 P.3d 1018. Applied in People v. Sasson, 628 P.2d 120 (Colo. App. 1980); People v. Walker, 666 P.2d 113 (Colo. 1983); People v. Manners, 713 P.2d 1348 (Colo. App. 1985); Tevlin v. People, 715 P.2d 338 (Colo. 1986); People v. Jensen, 747 P.2d 1247 (Colo. 1987); People v. Penn, 2016 CO 32, 379 P.3d 298.