The credibility of a witness may be impeached on cross-examination by evidence of character or reputation provided that the evidence refers only to the witness’s character for truthfulness or untruthfulness.42 Such impeachment may be by evidence of reputation. The traditional method in Delaware is to ask a witness whether he or she is familiar with the reputation of the witness to be impeached in the community where the witness whose character is being attacked lives or works. If the answer is yes, the follow-up question asks what that reputation is. In the past, if the answer was to the effect that the reputation was not good, the cross-examiner could ask whether or not, based on that reputation, the witness could believe testimony given under oath by the witness whose credibility is being impeached.43
The credibility of a witness may also be impeached on cross-examination by asking the witness questions about specific instances of prior misconduct, even if not leading to a conviction, but only if the court in its discretion determines that the specific examples concern the truthfulness or untruthfulness of the witness.44 The impeaching party may not seek to prove the specific instances of misconduct by extrinsic evidence.45 This is to prevent “mini-trials” about the alleged “bad acts” of a witness, which would be collateral and confusing.46 This leaves the jury to guess whether the witness is right or whether the examiner is right. Where the issue is credibility, the cross-examiner is seemingly stuck with the answer, but the jury may get a different opinion. This imposes on the court and counsel a responsibility to see that any such question is narrowly targeted to the specific character trait in issue and that such question relates to actual facts and not to speculation or fiction.47
Because evidence of specific instances of conduct possesses the greatest risk of prejudice, courts will be strict in determining whether character is an issue and will limit character evidence to circumstances where character is a material fact which under the substantive law determines the rights and liabilities of the parties.48 There are four factors a trial court considers when determining the appropriateness of questions attempting to impeach a witness by reference to other bad acts: (1) whether the testimony of the witness being impeached is crucial; (2) the logical relevance of the specific impeachment evidence to the question at bar; (3) the danger of unfair prejudice, confusion of the issues and undue delay; and (4) whether the evidence is cumulative.48.1 In addition, the Court also may consider the temporal proximity of the prior misconduct to the events giving rise to the charges.48.2
Recognizing the likelihood that the character of a witness may be impugned by simply asking questions regarding past misconduct, courts should consider the quality of the evidence to be utilized. Before counsel may question a witness regarding past instances of misconduct, counsel must possess a good faith, reasonable basis to believe that the conduct, in fact, occurred. Once a court determines that a proper foundation has been laid, the court next must focus on the scope and means of the examination. If a court allows cross-examination of a witness regarding specific incidents of misconduct that bear on the witness’s credibility, the court must ensure that such incidents are not proven by extrinsic evidence. Indeed, if, on cross-examination, the witness denies the past misconduct, there may not be any further inquiry because any evidence of the conduct itself necessarily would be extrinsic evidence of a collateral matter and, therefore, inadmissible. By excluding extrinsic evidence of misconduct, counsel must take the answer of the witness who is questioned about past misconduct. That does not necessarily mean that counsel must take the first answer of the witness. To foster meaningful cross-examination, the court must allow counsel an opportunity to overcome an initial denial of past misconduct with follow-up questions. And counsel may use (and openly refer to) documents while phrasing the questions even though the documents themselves are inadmissible. Effective cross-examination, however, must be tempered by the need to protect against the prejudice which inevitably will flow from loaded rhetorical questions, the answers to which are less important to the interrogator than the questions themselves. A balance of these competing concerns, in the exercise of the Court’s discretion, must be struck.48.3
A criminal defendant, merely by taking the stand, is not automatically subject to impeachment by prior wrongful acts. If, however, that defendant presents affirmative evidence of good prior conduct to show good character, the door is open for impeachment through evidence of prior wrongful acts, as well as general evidence as to reputation as to truthfulness.49
When a witness has testified as to the good character of a party, cross-examination should be designed to test, that witness’s knowledge about contradictory community opinion.50 Such cross-examination must be limited to ferreting out the extent that the party’s specific acts of misconduct were known in the community or among the party’s acquaintances.51 Thus, it is improper to ask whether a character witness knows of a given instance of misconduct by a party, as opposed to whether the character witness has heard of the claimed misconduct.52 It is also improper to attack the credibility of the underlying facts which formed the basis of the witness’s reputation opinion in the first place.53
As any inquiry into reputation depends on hearsay, in determining the permissible scope of cross-examination about instances of prior misconduct, the court has a duty to protect against abuse. Where there is any reasonable doubt as to the propriety of cross-examination about reputation, counsel should request, and the court should conduct, a preliminary inquiry outside the presence of the jury. The proponent of the evidence should make a proffer to allow the court to weigh the probative value of the evidence against its prejudicial effect. Before allowing such cross-examination, the court should be satisfied that there is a reasonable factual basis for the specific claim of misconduct. The court should also be satisfied that the information would ordinarily be discussed in the relevant community and that the event was not too remote in time or place. If the decision is to admit the hearsay reputation evidence, the jury should be instructed as to its limited purpose.54
42. D.R.E. 405(a), 608; Marvel v. State, No. 106, 1990, slip op. at 5, Walsh, J. (Del. Jan. 25, 1991) (ORDER), disposition reported at 587 A.2d 454 (Del. 1991) (TABLE).
43. The language of Federal Rule of Evidence 405(a) permitting direct opinion evidence as to the credibility of a witness had been eliminated from the Delaware rule, but was reinstated in 2001. See D.R.E. 405(a), comment.
44. D.R.E. 608(b); Thorpe v. State, No. 306, 1991, slip op. at 2, Horsey, 3. (Del. Oct. 30, 1992) (ORDER), disposition reported at 616 A.2d 1214 (Del. 1992) (TABLE). See also Crawley v. State, No. 246, 1990, slip op. at 6-7, Moore, J. (Del. Aug. 20, 1991) (ORDER), disposition reported at 599 A.2d 412 (Del. 1991) (TABLE) (questions relating to pending charges properly excluded as witness was contesting charges and so would not have admitted guilt); Gist v. State, No. 38, 1986, slip op. at 8, Christie, J. (Del. July 10, 1987) (ORDER), disposition reported at 529 A.2d 772 (Del. 1987) (TABLE) (arrest or indictment does not impeach witness as it happens to the innocent as well as the guilty); Matter of Langmeier, C.A. No. 78696, slip op. at 4, Brown, C. (Del. Ch. June 8, 1982).
45. D.R.E. 608(b); State v. Reed, Cr. A. No. 9000682, slip op. at 3, Babiarz, J. (Del. Super. May 20, 1991). But see Hudson v. Wesley College, C.A. No. 1211-K, slip op. at 6-7, Steele, V.C. (Del. Ch. Feb. 9, 1998) (extrinsic evidence is admissible to show that a witness has a bias or a motive to testify falsely). Conversely, under Rule 608(b), a party may not introduce evidence of specific instances of conduct to prove that a witness is not a good or generally truthful person and so should not be believed. Scott v. State, 642 A.2d 767, 770 (Del. 1994).
46. Manna v. State, 945 A.2d 1149, 1155-56 (Del. 2008); Weber v. State, 457 A.2d 674, 680 (Del. 1983); Williams v. Warren Bros. Constr. Co., 412 A.2d 334, 337 (Del. 1980).
47. The subject is discussed in Michelson v. United States, 335 U.S. 469 (1948). See also United States v. Lewis, 482 F.2d 632 (D.C. Cir. 1973).
48. Tice v. State, 624 A.2d 399, 401 (Del. 1993).
48.1. Coverdale v. State, 844 A.2d 979, 980-81 (Del. 2004);Harper v. State, 970 A.2d 199, 201 (Del. 1999); Snowden v. State, 672 A.2d 1017, 1025 (Del. 1996); Weber v. State, 457 A.2d 674, 681 (Del. 1983).
48.2. State v. Watson, 846 A.2d 249, 253 (Del. Super. 2002).
48.3. State v. Watson, 846 A.2d 249, 253 (Del. Super. 2002).
49. Scott v. State, 521 A.2d 235, 241 (Del. 1987); Casalvera v. State, 410 A.2d 1369, 1373 (Del. 1980); Steigler v. State, 277 A.2d 662, 668 (Del. 1971), vacated in part on other grounds, 408 U.S. 939 (1972); State v. Reed, Cr. A. No. 90006821, slip op. at 3, Babiarz, J. (Del. Super. May 20, 1991).
50. See Styler v. State, 417 A.2d 948, 950 (Del. 1980); Dc Jarnette v. State, 338 A.2d 117, 118 (Del. 1975).
51. Getz v. State, 538 A.2d 726, 732 (Del. 1988).
52. Woods v. State, 315 A.2d 589, 591 (Del. 1973).
53. Matter of Langmeier, C.A. No. 78696, slip op. at 4, Brown, C. (Del. Ch. June 8, 1982).
54. Woods v. State, 315 A.2d 589, 591 (Del. 1973).
© 2010 David L. Finger