Expanded Use of ER 608 (b) Evidence

By Brett Purtzer, October 2016

ER 608(b) governs the admission of specific act evidence, and if a witness is crucial to the state’s case, and the alleged misconduct constitutes the only available impeachment evidence, a trial court abuses its discretion if the defense is not allowed to inquire about said evidence. State v. McSorley, ____ Wn.App. _____, 116 P.3d 431 (2005).

Although McSorley is an ineffective assistance of counsel case, the court, for guidance purposes, reviewed ER 608(b) because the trial court prohibited the defendant from using prior specific instances of conduct probative of the witness’s credibility to cross-examine the complaining witness.

Importantly, ER 608(b) allows evidence of specific instances of a witness’s conduct to attack or support a witness’s credibility. The court noted that although the trial court has discretion to allow such evidence, “failure to allow cross-examination of a state’s witness under ER 608(b) is an abuse of discretion if the witness is crucial and the alleged misconduct constitutes the only available impeachment” citing State v. York, 20 Wn.App. 33, 621 P.2d 784 (1980).

In McSorley, the ER 608(b) evidence the defendant sought to introduce was two pranks engaged in by “DJ”, a 10-year-old child. One involved DJ gesturing wildly for a passing car to stop, and once the car stopped and the driver ran to help, the driver was met with “a torrent of profanity and laughs from DJ’s friends hiding in the bushes.” The other instance involved DJ lying in the road with his bike, as if he had just been involved in a bike accident, and when the driver stopped to render help, DJ jumped up and did a little dance.

Division II, upon reviewing these specific instances of conduct, held as follows:

His prior “pranks” – if they were not too remote in time – were highly probative of his credibility at trial, both because they showed a willingness to mislead strangers, albeit through nonverbal conduct, and because they “constitute[d] the only available impeachment.” Only because of their exclusion was the prosecutor able to assert in closing argument, without controversion, that DJ “is not one of these ten-year-olds who is going to say things that aren’t true or is going to say things just because they have been suggested to him ... He takes it seriously, and he tells the truth.”

The court held that if McSorley could show that both pranks were not too remote in time, the juvenile could be cross-examined regarding these particular, specific instances of conduct.

McSorley’s significance is that it considers as ER 608(b) evidence conduct other than that traditionally involving untruthfulness to impeach a witness. As such, when investigating your complaining witness where credibility is paramount, make certain that you learn about all potential, specific instances of conduct that might be used to attack the witness’s credibility, and then use ER 608(b) to impeach the complaining witness.