Colorado Criminal Trials: Using Rule 608 Character Evidence As A Sword

Colorado Criminal Trials: Using Rule 608 Character Evidence As A Sword

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law in the courts of Colorado for over 40 years.

Introduction:

Credibility is the currency of every criminal trial. When the State’s case rests on the word of an informant, an alleged victim, or an officer whose report contradicts the physical evidence, the fight is rarely about what happened — it is about who the jury believes.

Colorado Rule of Evidence 608 allows a skilled trial lawyer to put a witness’s character for truthfulness squarely before the jury, and it can be the difference between a conviction and an acquittal.

Win the credibility fight, and you often win the case. Colorado Rule 608 lets you fight it.

This article, the second of two, again walks through the text of CRE 608, the leading Colorado case law interpreting it, the strategic uses (and traps) practitioners should know, and concrete techniques for deploying the rule in a Colorado criminal trial.

The Text of CRE 608

CRE 608 has two subsections that do very different work.

CRE 608(a) — Opinion and Reputation Evidence

Under CRE 608(a), the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to two limits:

1. The evidence may refer only to character for truthfulness or untruthfulness; and
2. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (See Part I of this two-part article – using Rule 608 as a Shield.) 

When You Use Rule 608 As A Sword – Attacking a Witness’s Truthfulness

• Attacking a witness’s truthfulness (offering reputation evidence that they are known as untruthful): admissible whenever that witness’s credibility is genuinely at issue — no predicate “attack” is required first.

• Supporting/rehabilitating truthfulness: admissible only after the witness’s character for truthfulness has been attacked by opinion evidence, reputation evidence, or otherwise.

Importantly, Colorado courts have held that mere contradiction of testimony, or ordinary credibility-testing cross-examination, does not automatically count as an “attack” — it’s a fact-specific analysis.

608(b) — The Specific Instances of Conduct Requirement

In attacking the credibility of a state’s witness on cross-examination, a lawyer may inquire into specific instances of the witness’s conduct if they are probative of truthfulness or untruthfulness (e.g., prior acts of fraud, lying on an application, filing a false report — even if it never led to a conviction).

Critical limitation: A lawyer cross-examining on these issues is stuck with the answer. Extrinsic evidence ( such as extrinsic documents or other witnesses) to prove the specific instance of conduct is not admissible to attack credibility under 608(b).

if the testifying witness denies the specific instance at issue, the attorney cannot bring in outside proof just to contradict them on that collateral point. This is discretionary — the trial court decides whether to allow the inquiry, and it’s frequently limited under other rules of evidence – specifically CRE 403 (unfair prejudice, confusion, waste of time) or CRE 611 (limiting the scope of cross examination).

Conduct used must go to honesty/veracity, not general bad character.

CRE 608(b) — Using Specific Instances of Conduct

As noted above, under CRE 608(b), specific instances of a witness’s conduct, offered to attack or support the witness’s character for truthfulness — (other than a criminal conviction admissible under § 13-90-101, C.R.S.) — 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 concerning:

1. The witness’s own character for truthfulness or untruthfulness; or
2. The character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified; People v. Segovia, 08SA164).

What CRE 608 Actually Governs — and What It Does Not

✓ Key Takeaway

The single biggest misuse of Rule 608 is trying to prove — through a third witness or other extrinsic evidence — that a particular witness lied on a particular occasion in this case. That is not what the rule permits.

Summary to This Point And Supporting Case Law

• CRE 608 generally governs character evidence offered to support or attack a witness’s credibility. It “looks to the past” and asks the jury to draw the inference that a witness who has been dishonest before has the character of a liar and therefore may be lying now (People v. Hall, 107 P.3d 1073).
• The rule does not permit a witness to testify that another witness testified truthfully on a particular occasion. Testimony that a social worker or investigator “believed” a victim’s statements is properly excluded, and a police officer’s testimony that witnesses “seemed” truthful similarly crosses the line (People v. Hall, 107 P.3d 1073; Liggett v. People, 05SC142).
• Impeachment for bias, interest, or contradiction is not governed by CRE 608 and does not, by itself, “open the door” to rehabilitation with opinion or reputation evidence of truthful character (Cornell LII — Rule 608 Advisory Notes).
• Evidence of specific acts used solely for impeachment is governed by CRE 608(b), not CRE 404(b), because it is not being offered to prove propensity for the charged conduct (People v. Segovia, 08SA164).

How to Attack a State’s Witness Under CRE 608(a)

CRE 608(a) is the vehicle for putting a “character witness” on the stand who can testify that a prosecution witness has a reputation for untruthfulness, or who can offer an opinion that the witness is not truthful.

Building the Foundation

A witness offering a character opinion under CRE 608(a) is not required to have a long-term acquaintance with the witness whose character is at issue (Honey v. People, 713 P.2d 1300 (Colo. 1986)).

The proponent must, however, establish:

• Sufficient contact or acquaintance to form an opinion, or membership in the same relevant community to know the witness’s reputation for truthfulness;
• That the testimony is confined to character for truthfulness or veracity — general “bad character” evidence is not admissible (Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992)); and
• That the opinion or reputation testimony is about the witness’s general character, not the witness’s truthfulness on a specific occasion (People v. Ayala, 919 P.2d 830 (Colo. App. 1995);.

Strategic Uses in Criminal Defense Matters

• Confidential informants and cooperators. Prior employers, probation officers, former co-defendants, or family members who know the informant’s reputation within a defined community can offer devastating opinion testimony that the informant is not truthful.
• Alleged victims in he-said/she-said cases. When credibility is the whole case — sexual assault, domestic violence, harassment — reputation testimony from co-workers, neighbors, or church members can shift the jury’s assessment.
• Civilian eyewitnesses. Where the State leans on a single lay witness, community reputation evidence is often the only tool available to counter that testimony.

Using CRE 608(b) on Cross- Examination — The Sharpest Tool in the Toolkit

CRE 608(b) allows counsel, in the court’s discretion, to cross-examine a witness about specific past acts probative of truthfulness or untruthfulness — even though there was no conviction and no way to prove the act through other witnesses. For example: shoplifting is a specific instance of conduct probative of truthfulness under CRE 608(b). — People v. Segovia (Colo. Sup. Ct.)

The Segovia Case: What Qualifies as “Probative of Truthfulness”

Colorado has taken a broad view of what qualifies. In People v. Segovia, the Colorado Supreme Court held that shoplifting is a specific instance of conduct probative of truthfulness under CRE 608(b), and that defense counsel properly inquired on cross-examination about a prosecution witness’s prior act of shoplifting (People v. Segovia, 08SA164).

Other categories courts routinely treat as probative of truthfulness include:

• Fraud, embezzlement, and theft by deception;
• False statements to law enforcement, prosecutors, or under oath in prior proceedings;
• Filing false tax returns or false insurance claims;
• Forgery, identity theft, and check fraud;
• Prior instances of lying on employment applications or benefit applications; and
• Use of aliases to deceive.

Acts of violence, drug use, or generalized “bad conduct” that do not bear on the witness’s veracity generally do not qualify — those are the classic 404(b) or 403 fights.

Good-Faith Basis and Offers of Proof

Colorado requires that questions about prior misconduct be asked in good faith.

In the felony-conviction context, the Colorado Supreme Court has repeatedly held that counsel must be prepared to establish a good-faith basis for the question, and prudent practitioners advise the judge in advance of the background supporting the proposed inquiry so the court can exercise its discretion (People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973)).

Asking a witness about conduct the examiner has no reason to believe occurred is reversible error and an ethics problem.

Closing Thoughts

CRE 608 is deceptively short. Its power lies in how narrowly it is drawn and how much room it leaves for a prepared trial lawyer to move. Used properly, it lets the defense reframe a “he said/she said” case into a referendum on whether the State’s key witness has a character for telling the truth at all. Used sloppily — with no good-faith basis, no offer of proof, or the wrong theory of admissibility — it invites reversible error and undermines the defense.

Win the credibility fight, and you often win the case. Colorado Rule 608 is the rule that lets you fight it.

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Colorado Criminal Law – Colorado Criminal Trials: Using Rule 608 Character Evidence As A Sword

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article above was accurate when it was drafted, but it cannot account for changes that occurred after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the time to continually update himself in nearly every area of criminal law, including Colorado criminal law, procedure, and trial and courtroom practice.

H. Michael works hard to deliver the best possible results for his clients, both in and out of the courtroom. He has written extensively on Colorado criminal law and continues to do so, and he hopes this article helps you in some small way.