H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Rule 608: Using Character Evidence To “Humanize” A Defendant – As A Shield

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Colorado Rule 608: Using Character Evidence To “Humanize” A Defendant – As A Shield

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

Colorado Rule 608: Using Character Evidence To "Humanize" A Defendant - As A ShieldIntroduction:

As a trial lawyer observer, you often sit in the courtroom observing other trials, wondering why certain information was excluded from evidence that could have been used to attack a previous witness’s testimony or to bolster a witness whose credibility has been attacked.

The answer is this: one of the most significant Colorado Rules of Evidence, Rule 608, which governs character evidence, was not used to show a witness’s trustworthiness or untrustworthiness on the witness stand.

Many of the Colorado rules of evidence are very technical and apply only in very limited circumstances. But in almost every case, the effect of the rule in question may decide the outcome of a case, which is finally decided by one simple question.

The question in every trial is, Does the jury believe your witness in the end? Or does the jury reject the credibility of your witness?

✓ Key Takeaway

Rule 608 addresses the admissibility of evidence of a witness’s character to attack or support their credibility.

608 is the Rule that states character evidence (good or bad) can be admitted to establish or attack a witness’s credibility (not for any other purpose, such as to prove whether he acted in conformity on another occasion- propensity evidence).

What follows is a two-part article that acts as a practical courtroom look at Colorado Rule of Evidence 608, needed to fight for credibility (a shield) and to preserve critical impeachment evidence (a sword) not otherwise barred by the Rule.

The Text of Colorado Rule of Evidence 608

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (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.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness other than conviction of crime as provided in §13-90-101, 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’s privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

A Closer Look At the Idea Behind CRE 608

CRE 608 can be used to:

  • Attack a witness’s credibility by asking about prior dishonest acts (lying, fraud, falsifying documents).
  • Support a witness’s credibility after impeachment.
  • Prevent parties from trying to sneak in extrinsic evidence of dishonesty.

Therefore, Colorado Rule of Evidence 608 controls two related moves:

  1. Reputation or opinion evidence about a witness’s character for truthfulness or untruthfulness. That is 608(a).
  2. Specific instances of conduct used to attack or support that character for truthfulness. That is 608(b).

Rule 608 is intentionally limited.Judges do not want trials turning into miniature trials about minor and less significant issues such as who cheated on taxes, who lied to their boss, who got fired for “integrity issues”, and so on.

The Defendant’s Character For Truthfulness.- CRE 608(a): Reputation and Opinion Testimony

This is the key issue in this article. So many of my clients believe they can call a “dozen” character witnesses to persuade a jury that they are not guilty of the crimes they are charged with. That is not the case. What defendants don’t know is that actually getting character evidence before a jury is much more limited and difficult than one might expect.

What 608(a) Allows As A Sword Or A Shield

Under 608  a lawyer can offer testimony that a witness has a reputation for being untruthful. Or that the character witness has an opinion that the witness is untruthful. A trial lawyer can also offer reputation evidence to bolster a witness whose credibility has been attacked.

But there are two big limits baked in:

  1. You can only talk about the character trait of truthfulness. Not violence, not greed, not “bad person”, not promiscuity, not irresponsibility.
  2. Evidence supporting truthfulness is only allowed after the witness’s character for truthfulness has been attacked. Meaning you do not get to pre-buff your witness with “everyone says she is honest” unless the other side first hits the witness on honesty.

Reputation vs Opinion

Reputation testimony is supposed to be about the witness’s reputation in a community. A workplace. A neighborhood. A professional circle.

Opinion testimony is simpler. The character witness says that, based on their knowledge of the witness, the witness is not truthful.

In real practice, opinion is usually easier to lay the foundation for, especially in modern life, where “reputation in the community” is fuzzier than it used to be.

It is very much true that reputation can be powerful when it is truly broad and not just one friend saying it.

Foundations Of Evidence Needed To Get The Evidence “In”

For an opinion, you need to show that the character witness has enough contact with the principal witness to have a meaningful opinion. Not one lunch. Not just “we follow each other on LinkedIn.” Something real.

✓ Key Takeaway

For reputation evidence, you need to show:

  • the character witness is familiar with the witness’s reputation for truthfulness in the relevant community, and
  • that community is one where reputation would circulate. Coworkers who interact. A small department. A professional group.

The “Attack” Requirement For Rehabilitating Truthfulness

You can only support a witness’s character for truthfulness after it has been attacked.

What counts as an attack. Not every impeachment qualifies. Courts usually treat these as attacks on truthfulness:

  • Rule 608(a) evidence that the witness is untruthful.
  • Rule 608(b) cross-examination about specific acts of lying.
  • Rule 609 convictions involving dishonesty or felony convictions that signal credibility problems.
  • Sometimes, accusations during cross-examination that the witness is lying, depending on how it is done.

What often does notunt as an attack for purposes of opening the door:

  • Showing bias or motive.
  • Showing inconsistent statements on a detail without suggesting overall dishonesty.
  • Showing poor memory or perception.

So the timing matters. If you want to rehabilitate with a truthfulness character witness, you may need to make a record that the opponent attacked honesty, not just accuracy.

Getting Reputation Evidence of Truthfulness Admitted Under CRE 608

Decide whether you want 608(a), 608(b), or both.

  • Sword: Use 608(b) when you have a clean, specific act of lying and you can live with the risk that the witness denies it and you cannot prove it with extrinsic evidence.
  • Shield: Use 608(a) when you can bring a credible character witness whose opinion or reputation testimony will sound fair and grounded.

Colorado Rule of Evidence 608(a) allows a witness’s credibility to be attacked or supported by opinion or reputation evidence, but only as to character for truthfulness or untruthfulness, and rehabilitative (“supporting”) evidence is admissible only after that character has been attacked. Here is the practical sequence for laying the foundation and getting the testimony in.

The Steps

Step 1: Determine which posture the case is in.

  • 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 already been attacked by opinion evidence, reputation evidence, or otherwise.

    • Colorado courts have held that mere contradiction of testimony, or ordinary credibility-testing cross-examination, does not automatically count as an “attack” If a lawyer is offering evidence for rehabilitation, that lawyer must be ready to point the court to exactly what “attacked” the witness (e.g., an accusation of fabrication, a prior conviction, opposing reputation/opinion testimony).

Step 2: Choose and vet the reputation witness.

  • The witness must have personal knowledge (CRE 602) of what an “appreciable group of people” — co-workers, neighbors, church members, a professional community — actually say about the principal witness’s character for truthfulness. This is different from the witness’s own personal opinion, which is a separate (and separately foundational) track also permitted under CRE 405(a).

  • Colorado case law does not require a long-term acquaintance for a character witness to be subject to impeachment.

Step 3: The trial foundations

Typical foundational questions to elicit before the substantive testimony:

  • Do you know [principal witness]?
  • How do you know them, and for how long?
  • What is the community/group you share with them (workplace, neighborhood, congregation, social circle)?
  • Are you familiar with what people in that community say about [principal witness]’s reputation for truthfulness/honesty?
  • What is that reputation?

Step 4: The Testimony Must Be Within The Rule’s Limits

  • Confined strictly to truthfulness/untruthfulness — general character evidence is inadmissible.

  • The witness may state the general reputation only — not opinions about truthfulness on a specific occasion or specific instances of conduct.

End Note

Colorado Rule of Evidence 608 allows a witness’s credibility to be attacked or supported by opinion or reputation evidence, but only as to character for truthfulness or untruthfulness, and rehabilitative (“supporting”) evidence is admissible only after that character has been attacked.

FAQs (Frequently Asked Questions)

What is the main purpose of Colorado Rule of Evidence 608?

Colorado Rule of Evidence 608 governs how lawyers may attack or support a witness’s character for truthfulness at trial, focusing solely on character evidence rather than on facts, documents, or timelines.

What types of evidence does CRE 608 control regarding a witness’s credibility?

CRE 608 controls two types of evidence: (1) reputation or opinion evidence about a witness’s character for truthfulness or untruthfulness under 608(a), and (2) specific instances of conduct used to attack or support that character for truthfulness under 608(b).

Can I use CRE 608 to show a witness is biased or has a motive to lie?

No, Rule 608 is limited to attacking or supporting a witness’s character for truthfulness only. Bias, motive, perception issues, memory problems, prior inconsistent statements, and criminal convictions are governed by other rules such as Rules 609 and 613.

What are the limitations on using reputation or opinion testimony under CRE 608(a)?

Under 608(a), you can only introduce testimony about the witness’s character trait of truthfulness. You cannot discuss unrelated traits like violence or irresponsibility. Also, evidence supporting truthfulness is only allowed after the witness’s character has been attacked.

How does CRE 608(b) regulate questioning about specific instances of conduct on cross-examination?

Rule 608(b) allows inquiry into specific instances of conduct that are probative of truthfulness on cross-examination but generally prohibits proving those instances with extrinsic evidence. This means you can ask about them but usually cannot bring in outside proof.

What foundation is required for offering opinion or reputation testimony under CRE 608(a)?

For opinion testimony, the character witness must have sufficient personal knowledge of the principal witness to provide a meaningful opinion. For reputation testimony, the witness must be familiar with the principal’s reputation for truthfulness within a relevant community where such reputation circulates.