Childers v. Commonwealth

¶1dissenting.

¶2We respectfully disagree with the Majority’s conclusion that cross-examination of a witness under KRE 608(b) is restricted by KRE 609, and, therefore, we dissent. The Majority holds that KRE 608(b) forbids the cross-examination of a witness about a specific instance of dishonest conduct when that conduct resulted in a criminal conviction, but allows such cross-examination when the subject of the inquiry was not convicted of a crime arising from such conduct. We dissent from the majority’s interpretation of KRE 608(b) because it is contrary to the plain meaning of the rule; offends the traditional guiding principles of our Rules of Evidence; and has been criticized by legal scholars, including one cited below stating that it leads to “a foolish result.”

¶3The majority accepts the notion, derived from federal cases, that “the interplay between Rules 608 and 609 is complex.” The majority then echoes the complicated analysis of similar Federal Rules of Evidence used by some federal courts. However, there is no complex “interplay” between KRE 608(b) and KRE 609. KRE 608(b) and KRE 609 are not interdependent upon each other because each rule operates independently of the other.

¶4The interpretation of the corresponding Federal Rules of Evidence by the federal courts and adopted by the majority opinion leads to the following absurd result. Under the majority’s ruling, a witness who has committed a theft may be cross-examined under KRE 608(b) about the theft but only if he was not actually convicted of the crime. However, if he was convicted of the theft, the majority holds that he could not be cross-examined about it. Thus, the act of theft may be used to impeach a witness who was tried and found not guilty of the theft; but it cannot be used when the dishonest act has been established beyond a reasonable doubt. That result defies reason. If one accepts the premise, as the Rules of Evidence for both Kentucky and the federal courts universally do, that knowledge of a witness’s dishonest conduct aids the trier-of-fact in assessing the credibility of that witness, then one must concede that conduct resulting in a conviction for theft, or some other of crime of dishonesty, such as perjury, has far more probative weight than an unproven allegation of the dishonest act.

¶5The source of the majority’s misconstruction of KRE 608(b) is its failure to recognize that the phrase, “other than conviction of crime as provided in rule 609,” is applicable only to extrinsic evidence. To reveal the fallacy of the majority’s opinion, we must dissect KRE 608(b).

¶6*77KRE 608(b) consists of four sentences.6 The first sentence reads:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence.

¶7KRE 609(a)7 generally provides that evidence of a witness’s felony conviction “may be elicited from the witness” (i.e., on cross-examination), or it may be established by public record, if denied by the witness. The identity of the crime upon which the conviction is based may not be disclosed unless the witness either chooses to disclose the crime or denies the conviction. The majority reads KRE 608(b)’s reference to KRE 609 as a complete preemption by KRE 609 of any evidence relating to a criminal conviction. Stressing that evidence of criminal conviction is “governed by KRE 609,” the Majority ignores the fact that the first sentence of KRE 608(b) addresses only extrinsic evidence, such as a public record of a criminal conviction, not testimony elicited upon cross-examination. The majority adopts the same flawed construction of the phrase, “other than conviction of crime as provided in rule 609 ” that has divided the federal courts.

¶8By its plain meaning, the first sentence of KRE 608(b) generally prohibits an attack on a witness’s credibility using “extrinsic evidence ” of specific instances of the witness’s conduct. In the context of this rule, extrinsic evidence means “all evidence other than what can be extracted during cross-examination of witnesses.” See Robert G. Lawson, The Kentucky Evidence Law Handbook, § 4.20(5) (4th ed.2003) (quoting Minutes, Evidence Rules Review Committee, Commentary on Amended Rule 608 (September 28, 2001)). Without an additional qualifying phrase, the first sentence of KRE 608(b) would directly conflict with KRE 609’s express authorization of extrinsic evidence, in the form of public records, to prove that a witness has a felony conviction. Hence, the qualifying phrase, “other than conviction of crime as provided, in rule 609,” simply operates to clarify that KRE 608(b)’s general ban on the use of extrinsic evidence to prove specific conduct of a witness does not interfere with the operation of KRE 609, where extrinsic evidence of a criminal conviction is admissible in certain circumstances. That qualifying phrase has nothing whatsoever to do with the second sentence of KRE 608(b) which, in turn, does not involve extrinsic evidence. It reads as follows:

“They [“specific instances of witness conduct”] may, however, in the discre*78tion 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.”8

¶9The second sentence is the heart of KRE 608. It allows, subject to the trial court’s discretion, a witness to be cross-examined about specific instances of conduct that are probative of his own character for truthfulness or untruthfulness, or about the character of another witness about whom he has testified. Where the first sentence of KRE 608(b) deals only with extrinsic evidence and excludes from its reach extrinsic evidence used to prove a criminal conviction under KRE 609, the second sentence of KRE 608(b) deals only with cross-examination. The second sentence requires no qualifying reference to KRE 609 because it contains no inherent conflict with KRE 609. KRE 608(b) allows cross-examination of a witness about specific acts that are probative of truthfulness or untruthfulness; and KRE 609 allows cross-examination, and in some circumstances, extrinsic evidence about felony convictions. The language of neither rule precludes application of the other.

¶10The majority, again citing the reasoning of various federal cases, supposes that its interpretation of KRE 608(b) is needed to block an “end run” around KRE 609 with “facts and details” underlying the conviction. In response, we note again that inquiry allowed by KRE 608(b) is extremely limited in scope and may be done only upon cross-examination. No follow-up admission of extrinsic evidence is allowed. Thus, we respectfully suggest that the Majority overstates the concern over admission of extensive details of a witness’s conduct.

¶11The majority worries further that we not permit KRE 608(b) to become the “backdoor” for admitting evidence not allowed under KRE 609, and so it constructs an interpretation of the rule to prevent that. It is true that sometimes cross-examination under KRE 608(b) about specific acts underlying a criminal conviction will reveal the identity of a crime which would not otherwise be allowed under KRE 609. But that “problem” is not unique to the KRE 608-609 analysis. Evidence forbidden under the hearsay rule may often find another route to the fact-finder, as impeachment evidence or some other non-hearsay purpose. We even have a rule of evidence that addresses the problem, KRE 105.9 The “backdoor” admission feared by the majority is further limited because only specific acts relating to the character trait of truthfulness can be admitted under KRE 608(b) and, even then, only after passing the filter of a trial judge’s discretion. The specific act underlying many felony convictions will never be admitted under KRE 608(b) because they do not reflect upon the trustworthiness of the witness. Felony convictions for crimes such as rape, manslaughter, murder, as*79sault, sexual abuse, trafficking in controlled substances, arson, nonsupport, and many others often do not involve specific conduct that would qualify under KRE 608(b). Thus, the policy choice implicit in KRE 609, to prohibit the identification of the particular crime is impeded only when the felony conviction involves a crime of dishonesty, such as theft, perjury, or the like. The majority, however, ignores the fact that KRE 608(b) represents an equally valid, but different, policy choice: a jury assessing the credibility of a witness may be apprised of conduct of that witness that is indicative of a truthful or untruthful disposition.

¶12Because it perceives the greater injustice to follow the disclosure of specific conduct from which a felony conviction arose, the majority sees KRE 609 as superseding KRE 608 in all situations. Accordingly, the majority creates a bright line, one-size-fits-all rule that offends a traditional guiding principle of our Rules of Evidence — the role of the trial judge in balancing the fairness of evidence admitted at trial.

¶13Certainly, as the majority fears, circumstances exist when the coupling of an unidentified felony conviction with the ac-knowledgement under cross-examination of the specific conduct from which the conviction arose, creates an unfairly prejudicial bias for or against a party. In such instances, KRE 608(b) expressly requires the trial judge to exercise discretion and disallow the prejudicial cross-examination. There is no omnipresent, unfair bias that requires us to ban inquiry through cross-examination about specific acts under KRE 608(b) every time those acts resulted in a conviction admissible under KRE 609. Such a bright line rule totally ignores, not only the judicial discretion expressly granted under KRE 608(b), but also the general policy implicit in KRE 40310 to allow the trial court wide latitude to exclude relevant evidence when its prejudicial impact exceeds its probative value.

¶14In Woolum v. Hillman, 329 S.W.3d 283, 287 (Ky.2010), we found such a bright line rule on impeachment of a witness to be incompatible with KRE 403.11 Citing Baker v. Kammerer, 187 S.W.3d 292, 296 (Ky.2006), we described the “the general inclu-sionary thrust of the Rules of Evidence and the preference to allow evidence of bias,” as “core principles of Kentucky’s evidence law.” “The law favors the admission of evidence that is relevant to a jury’s determination of a witness’s credibility. As with most evidentiary decisions, the trial court’s discretion in this area stems from its gatekeeping function under KRE 403.” Baker, 187 S.W.3d at 295. “A trial judge may always exclude evidence when its probative value is substantially out-wéighed by its risk of undue prejudice.” Id. at 297. The majority’s interpretation of KRE 608(b) leads us down a path that departs from the foregoing principles.

¶15Finally, we note that while both of the articles of legal scholarship cited in the majority opinion acknowledge that most federal circuit courts (but not all) have adopted an interpretation of the rules consistent with the majority opinion, both articles strongly criticize the interpretation.

¶16*80Noted criminal law professor H. Richard Uviller states:

This reading of the rules [the same reading of rules adopted by the majority] obviously produces a foolish result. No good reason supports allowing extensive inquiry into an elaborate real estate hoax and the witness’s part in it as long as it was never prosecuted as a crime, but limiting examination of the prosecuted swindle to the fact of conviction of mail fraud or some lesser, bargained-for crime to which the defendant may have been allowed to plead guilty.

¶17H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale, 42 Duke L.J. 776, 804 (1993). Uviller goes on to note:

A wiser construction would be that Rule 608(b) is unaffected by Rule 609, and that the fact that the witness’s dishonest conduct resulted in a criminal conviction does not diminish the right of the opposing party to cross-examine the witness about the conduct itself. In this reading, Rule 608(b) is taken as a provision concerned only with the admissibility of extrinsic evidence; it provides that proof of specific instances of dishonest conduct may be adduced only from the mouth of the impeached witness himself.

In this context, the troublesome words of Rule 608(b), “other than conviction of crime as provided in rule 609,” would not be read to limit the license to conduct that does not underlie a criminal conviction, but rather to exempt proof of the fact of prior conviction from the ban on extrinsic evidence. This reading also accords with the Advisory Committee Note.

¶18Id. at 806 (footnotes omitted). The “wiser construction” that Professor Uviller suggests is precisely the same interpretation of the rules that we outlined above.

¶19The second article cited by the majority agrees with Professor Uviller’s assessment, although its author, New York Law School Professor Donald Ziegler, shares the majority’s concern for the prejudicial effect of 608(b) impeachment. After describing what he calls “chaos” among the federal courts trying to resolve the interaction between Rule 608(b) and Rule 609(a) and proposing substantial amendments to the Rules, he writes:

[Cjourts generally should permit impeachment with the same sort of misconduct under both rules. The reason is the one stressed above; namely, that it is the misconduct that is probative and prejudicial, not whether the misconduct resulted in a conviction. Complete consistency plainly is not possible. The scope of misconduct admissible under Rule 608(b) necessarily exceeds that of Rule 609(a) because Rule 609(a) is limited to misconduct that resulted in a criminal conviction. Rule 608(b) encompasses not only conduct resulting in a criminal conviction but also criminal conduct not resulting in a conviction and some noncriminal conduct that bears on credibility. Nonetheless, there is substantial overlap. Prior misconduct that is criminal in nature should be equally admissible under both rules.

¶20Donald H. Ziegler, Harmonizing Rules 609 and 608(b) of the Federal Rules of Evidence, 2003 Utah L.Rev. 635 (2003) (footnote omitted). The majority finds unjustifiable comfort in the fact that its opinion mimics the result attained by a majority of federal courts interpreting analogous provisions of the Federal Rules of Evidence. However, the Kentucky Rules of Evidence are the product of the Kentucky Supreme Court and the Kentucky General Assembly, aided by eminent Kentucky lawyers and legal scholars. In the interpretation of state law, we owe no deference to the views the federal judges of various *81circuits throughout the nation simply because they outnumber the federal judges in other circuits who hold a different view.12 We should not subject the meaning of the Kentucky Rules of Evidence to a head count of federal judges interpreting their own rules of evidence, especially when doing so produces the illogical effects of the majority opinion in this case and, when doing so, defies the plain language of our Rule and contravenes core principles of Kentucky evidentiary law. We, therefore, respectfully dissent.

¶21SCHRODER and SCOTT, JJ., join.