Is Rule 608(b) a Rule of Exclusion?

In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court “was an inappropriate form of impeachment.”  Slip Op. p. 13.  In support of this conclusion, the Court of Appeals cited, among other things, Evidence Rule 608(b).  That rule generally bars evidence of specific instances of a witness’s conduct for the purpose of attacking or supporting his credibility; however, specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness.  N.C.G.S. § 8C-1, Rule 608 cmt.  This post examines the use of Rule 608(b) in Hamilton to determine how a prosecutor can avoid improper impeachment. I.     Specific instances of conduct as evidence of character The North Carolina Rules of Evidence became effective in 1984 (making reconciliation with prior practice a perpetual preoccupation).  Cf. State v. McKoy, 385 N.C. 88, 95, 891 S.E.2d 74, 79 (2023).  Pre-Rule cases articulated conflicting rationales, one line stating that evidence of the defendant’s other crimes, wrongs, or acts was generally admissible, so long as it was not offered to show propensity, another stating that such evidence was generally inadmissible, subject to exceptions.  See 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 94, p. 297 (8th ed. 2008) (collecting cases).  Rule 404(b) codifies the former line: evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character to show he acted in conformity therewith, [...]