Washington Legal Defense
Free Consultation
Expanded Use of ER 608 (b) Evidence Get 150+ Years of Combined Litigation Experience on Your Side
Hester Law Group

Expanded Use of ER 608 (b) Evidence

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.

Categories

Success Stories

  • If he said he was going to do something he did it. He has integrity.

    “Wayne Fricke is a terrific lawyer who knows the law. The following are only several of many ways Mr. Fricke supported me during my time of crisis: 1. Explained the charges against me in a manner that ...”

    - Former Client
  • He always exceeds expectations.

    “Mr. Fricke has been our family lawyer for about 5 years. He has done an amazing job representing my family and I. He always exceeds expectations and informs us on everything going on.”

    - Jen
  • He, at no time, treated me as though I was guilty.

    “I was accused of domestic violence and need a Lawyer to defend me. Not knowing who to hire I started with Mr. K.W. This lawyer did not seem to believe in my innocence and I was looking at 3 to 5 ...”

    - Craig
  • Mr. Fricke had his office call me weekly for updates.

    “A few years ago, I was involved in a car accident. Due to my injuries, I hired an attorney who seemingly disappeared. I was in crisis after calling the court and finding out my case had been dismissed ...”

    - Sharyl
  • He is always honest and straight forward.

    “I hired Lance Hester to help me with 2 different legal matters. One was a felony criminal case and the other was a family law issue. In the felony criminal case this individual had everything to lose ...”

    - Former Client

Proven Results

  • Reduced Sentence Drug Crime
  • Case Dismissed Multiple Counts of Child Exploitation
  • Case Dismissed Domestic Violence
  • Four Felony Charges Dismissed Four Felony Counts
  • Reduced Sentence Drug Distribution
  • Vacated Conviction 4th Degree Assault
  • Case Dismissed Possession of Stolen Property
  • Two Restraining Orders Granted Anti-harassment Orders
  • Federal Court Success Federal Probation Violation
  • Case Dismissed Rape
/

Why Choose the Hester Law Group?

  • Accessible to Clients

    We understand the urgency clients have when they need an attorney. We are available  24/7 to help you.

  • We Truly Care

    We feel honored to help someone through the toughest time they will ever go through.

  • Personalized Approach

    At Hester Law Group, we use a personal approach that best suits the needs of our clients.

  • Unparalleled Experience

    We have been a successful team for two decades and have over 130 years of combined experience.

We're Available 24/7

Get Started on Your Defense Today
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.