3d Cir. Model Jury Instr. (Criminal) 2.24

Caution: This instruction should not be given when the defendant has been

impeached with a prior conviction under Rule 609 of the Federal Rules of Evidence. See

Instruction 2.25 (Impeachment of Defendant - Prior Conviction). Nor should this

instruction be given when evidence of other crimes has been admitted to prove motive,

opportunity, intent, or the like under Rule 404(b) of the Federal Rules of Evidence.

Instead, the jury should be specifically instructed on the purpose for which such evidence

was admitted. See Instruction 2.23 (Defendant’s Prior Bad Acts or Crimes). If evidence

of the defendant’s prior conduct or conviction has been admitted under Rule 404(b) or

Rule 609 and the defendant is impeached with prior bad acts under Rule 608(b), this

instruction should be given in conjunction with Instruction 4.29 (Defendant’s Prior Bad

Acts or Crimes) respectively. If different evidence has been admitted under all three

rules, all three instructions should be given, highlighting the difference in relevance for

the jury. If the same evidence is admitted under Rule 608(b) and another of these rules,

the instructions should be modified to reflect the multiple bases for admission.

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

609, may not be proved by extrinsic evidence. They may, however, in the discretion of

the court, if probative of truthfulness or untruthfulness, be inquired into on cross -

examination of the witness

(1) concerning the witness’ character for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another witness as to

which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate

as a waiver of the accused’s or the witness’ privilege against self-incrimination when

examined with respect to matters that relate only to character for truthfulness.

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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, 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.

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