Topics: Appellate Review

Is there a balancing test?

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Is there a balancing test?

Who / under what conditions






(No balance, exp. 10 year)

Everyone EXCEPT crim defendant

Any Dishonesty
Commentary: Use 403)

Any Felony

“shall be admitted,

subject to Rule 403”

[favors admissibility]

Criminal Defendant

No Convictions

(Big mouth exception)

Any Felony

“shall be admitted if…probative value outweighs its prejudicial effect to the accused.”

If Probative Value > prejudicial effect

[favors exclusion]

Time restrictions

(Commentary:: use time)

Unlikely after 10 years from release


Treated as “No Conviction”

No conviction under certain conditions

(rehabilitation, innocence)


Crim Def

Same as Adult

Crim Def: Generally not admissible

Crim Witness

Crim Wit: Maybe admissible like adult (Davis v. Alaska)

Appeal Pending

Still Admissible

STATE v. TORRES, 85 Hawai'i 417, 945 P.2d 849 (1997) [ICA Opinion]

(approving school teacher’s testimony that youthful complainant was “a very honest student” following defense cross-examination that suggested complainant had “engaged in perjurious misconduct before the grand jury” - Bowman – Hawaii Rules of Evidence Manual)

- the offense of sexual assault in the first degree against his niece...

Defendant asserts that: ... the circuit court plainly erred when it allowed Complainant's teacher to provide opinion testimony regarding Complainant's veracity when Complainant's credibility had not been attacked;... We affirm.
Complainant's sixth through eighth grade teachers (Teacher) was called as the final State's witness [and] testified that Complainant
“[was] a very honest student.

She was always honest and straightforward with me
I would say she was quite honest.”


C. Admissibility of Teacher's Opinion Testimony to Bolster Complainant's

- evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked “by opinion or reputation evidence or otherwise.”

a. What constitutes character evidence for truthfulness.

Because the HRE does not define the term “character” or set forth any guidelines for determining what constitutes character evidence for truthfulness within the meaning of HRE Rule 608, it is often difficult to determine when evidence concerning witness credibility falls within the scope of HRE Rule 608.

[W]itness character evidence may be defined as evidence that directly relates to the general credibility of the witness, rather than the believability of specific testimony, and conveys some judgment about the ethics or moral qualities of that witness.

- bias evidence indicating the witness has an interest in the outcome of the instant case usually should not be classified as character evidence because it usually says nothing general about credibility. For the same reason, evidence of a prior inconsistent statement or other evidence contradicting the witness usually is not character evidence. Inconsistencies or contradictions usually suggest only that the witness lied or was mistaken with respect to the specific facts described.
The evidence usually implies no encompassing generalization about the credibility of the witness. Finally, evidence that a witness lacks certain knowledge or has acted in an unprofessional manner undermines his capacity to testify as an expert, but does not reflect on his general truthfulness.

There are certain categories of impeaching evidence, none of which are present in this case, which clearly constitute attacks on a witness's character for truthfulness. For example, HRE Rule 608(a) specifically provides that reputation or opinion evidence of a witness's untruthful character qualifies as an attack on a witness's character for truthfulness, thus lifting the bolstering ban. The Commentary to HRE Rule 608(a) also recognizes that “evidence of misconduct, including conviction of crime, and of corruption” constitutes an attack on a witness's character for truthfulness.

In other cases, such as this one, the category of impeaching evidence employed to attack a witness's credibility is not determinative of whether the witness's character for truthfulness has been attacked. In such instances, an evaluation must be made under the HRE Rule 608 analytical framework discussed above to determine whether the impeaching evidence (1) relates directly to the general credibility of the witness rather than the believability of the specific testimony of the witness, and (2) conveys some judgment about the ethics or moral qualities of the witness.

2. Whether Complainant's character for truthfulness was sufficiently attacked in this case.

we conclude that Complainant's character for truthfulness was not attacked when defense counsel questioned her about various details of her personal life. However, Complainant's character for truthfulness was attacked when defense counsel vigorously cross‑examined Complainant about her prior inconsistent statements to the grand jury and whether she had ever lied before.
a. Prior inconsistent statements.

The Advisory Committee's Note to FRE Rule 608 states that “[w]hether evidence in the form of contradiction is an attack upon the character of the witness must depend on the circumstances.”
The reason for this is that in many circumstances, a witness's “misstatements may be due to defects in memory or knowledge, or attributable to bias, rather than indicative of untruthfulness.”
[E]vidence that contradicts a witness can be offered to prove his lack of credibility by showing the witness has flawed perceptual, recall, or narrative abilities. Because such evidence suggests the witness has committed only an honest mistake, it does not attack character for truthfulness. Further, contradiction evidence might be offered to prove the witness has intentionally lied, but for reasons that are case‑specific and have nothing to do with general trustworthiness. Finally, contradiction evidence may be offered not to prove credibility but simply to show that the facts are as described by that evidence.
a trial court must consider whether the “particular impeachment for inconsistency or a conflict in testimony, or either of them, amounts in net effect to an attack on character for truth.”
In the instant case, the inconsistencies between Complainant's grand jury and trial testimonies related to whether Defendant had bathed Complainant's entire body or just her “private parts.” As a result of defense counsel's questioning, Complainant admitted that she had not testified truthfully before the grand jury. Because defense counsel implied, by his questioning, that Complainant had engaged in perjurious misconduct before the grand jury, we conclude that Complainant's general character for truthfulness was sufficiently attacked.
b. Complainant's statement that she never lied.

After defense counsel asked Complainant whether she ever told a lie, Complainant responded that she never lied. Defense counsel then questioned Complainant repeatedly about her foregoing statement. The State contends that because most adults expect children to tell lies occasionally, defense counsel's vigorous cross‑examination of Complainant was an attack of Complainant's character for truthfulness that also allowed the State to introduce bolstering character evidence.

We agree. Defense counsel specifically called into question Complainant's character for truthfulness when he directly asked Complainant whether she had ever told a lie and queried her as to her past conduct with regard to telling lies. This line of questioning clearly constituted an attack on Complainant's general character for truthfulness and opened the door for bolstering evidence. ... we affirm.

STATE v. ESTRADA 69 Haw. 204, 738 P.2d 812 (1987)

HRE 403, 404, 609.1 608(b)

(Error to exclude evidence under 608(b) of police officer’s (the complaining witness) false statement in application for employment in Maui Police Department)

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