3d Cir. Model Jury Instr. (Criminal) 2.23

instructions should be given, highlighting the difference in relevance for the jury.

Rule 608(b) permits inquiry only concerning prior acts that are probative of

untruthful conduct. To fall within the rule, the acts “will normally involve dishonesty or

false statement as employed in Rule 609(a)(2).” Graham § 608.4 at 146-47. The Third

Circuit has held that Rule 609(a)(2) applies only to crimes that “bear on the witness’

propensity to testify truthfully.” See United States v. Johnson, 388 F.3d 96 (3d Cir. 2004).

In United States v. Irizarry, 341 F.3d 273 (3d Cir. 2003), the court noted that the trial

court properly allowed the prosecutor to cross-examine the defendant about his

possession of identification in someone else’s name and about his possession of blank

Social Security cards. Id. at 312. The Third Circuit stated that the evidence tended to

show deceit and therefore fell within Rule 608(b).

The Third Circuit has also held that the decision whether to allow cross-examination under Rule 608(b) falls within the trial court’s discretion. See United States

v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989). In Johnson v. Elk Lake School District, 283

F.3d 138 (3d Cir. 2002), the court held that the trial court acted within its discretion when

it precluded plaintiff’s counsel from cross-examining a key witness concerning a lie on

his resume. Id. at 145 n.2. The court noted that the trial court’s ruling was reviewed under

an abuse of discretion standard with “substantial deference” to the trial court. The court

stated that “the trial court was within its discretion to conclude that Stevens' lying on his

resume, although duplicitous and wrong, was not so indicative of moral turpitude as to be

particularly probative of his character for untruthfulness.” Id. This result is criticized in

Graham who states that “the exercise of discretion should very rarely if ever be exercised

to exclude an undisputed act of ‘lying’” such as that in Johnson. Graham § 608.4 n.5.

The inquiry under Rule 608(b) should focus on the actual acts that suggested

untruthfulness and not any third-party action, such as suspension from a job, that resulted

from those acts. See United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999). The

court may preclude inquiry concerning prior acts if they are remote in time. See Johnson

v. Elk Lake School District, 283 F.3d 138, 145 n.2 (3d Cir. 2002).

Cross-examination may be limited by the Fifth Amendment; Rule 608(b) provides

that no witness, including the accused, waives the Fifth Amendment privilege against

self-incrimination when examined with respect to matters that relate only to character for

truthfulness. See United States v. Hudson, 422 F.Supp. 395 (E.D. Pa. 1976), aff’d 556

F.2d 566, aff’d 556 F.2d 569, cert. denied, 431 U.S. 922, cert. denied, 434 U.S. 839

(1977). The Third Circuit appears not to have addressed this aspect of the rule.