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, but it may be admissible for other purposes.  Id.; cf. N.C.G.S. § 8C-1, Rule 404 cmt. (“consistent with North Carolina practice”).   Hence, “Rule 404(b) has been characterized as a rule of inclusion.”  State v. Pickens, __ N.C. __, __, 893 S.E.2d 194, 198 (2023) (citing State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48 (1990)).

As noted by the commentary to Rule 405, evidence of specific instances of conduct is the most convincing method of proving character and has the greatest capacity to arouse prejudice, to confuse or surprise, and to waste time.  N.C.G.S. § 8C-1, Rule 405 cmt.  Accordingly, both the Rules and pre-Rule cases agree that when a person’s character is only collaterally in issue, character generally cannot be proved by specific acts.  1 Brandis & Broun § 97, p. 338.  For the same reason, even when inquiry into specific instances of conduct is permissible to show character (as upon cross-examination, see below), the witness’s answer is conclusive and cannot be contradicted by other testimony.  N.C.G.S. § 8C-1, Rule 608(b); 1 Brandis & Broun, § 97, p. 342.