Cross examination can be a tricky business.
The Federal Rule of Evidence Rule 608(b) allows specific instances of conduct "to be inquired into if they are probative of the character for truthfulness or untruthfulness." This means that attorneys can grill witnesses about their past in an attempt to discredit their testimony. Chances are you have seen this in the last courtroom drama you watched.
Most states (including Utah), have a virtually identical Rule 608 that allows attorneys to ask witnesses about their past. But there is a difference of opinion among the states (and circuits) about what amount of past conduct can be inquired into. Specifically, jurisdictions disagree over whether attorneys should be allows to ask the witness about pending indictments. (If the indictment has resulted in a conviction, then the conviction can be introduced through Rule 609.)
The majority of jurisdictions that have addressed the matter have concluded that indictments may not be used to impeach a witness's character for truthfulness. Utah has not addressed the issue directly, but has permitted the use of "conduct not resulting in a conviction." Robinson v. Taylor, 2015 UT 69, ¶ 16, 356 P.3d 1230, 1234. Here is how the caselaw stacks up:
Impeachments may (though the courts have not expressly stated so) be used to impeach a witness:
United States v. Staples, 410 F.3d 484, 489 (8th Cir. 2005) (acknowledging and not overturning the use of an indictment to impeach a witness); United States v. Martinez, No. 16-10062-JTM, 2016 WL 4399185, at *2 (D. Kan. Aug. 18, 2016) (recognizing in dicta, without disapproval, the government’s intent to use and indictment to impeach a witness); Robinson v. Taylor, 2015 UT 69, ¶ 16, 356 P.3d 1230, 1234 ("Conduct not resulting in a conviction may be inquired into on cross-examination under rule 608 . . . ."). But see Utah R. Evid. 608, Advisory Committee Note (stating that an "attack upon a witness's credibility by specific instances of character other than conviction of a crime is inadmissible under current Utah law") (citing Bullock v. Ungricht, 538 P.2d 190, 192 (Utah 1975)).
Impeachments may not be used to impeach a witness:
Brown v. Coating Specialists, Inc., 465 F.2d 340, 341 (5th Cir. 1972) (“[A] witness who was under indictment . . . could not be impeached by evidence of the pending indictment.”); Jenkins v. Gen. Motors Corp., 446 F.2d 377 (5th Cir. 1971), cert. denied, 405 U.S. 922 (1972); United States v. Baker, 494 F.2d 1262, 1266 (6th Cir. 1974) (a witness’ credibility generally cannot be impeached by showing arrest, indictments or other acts of misconduct not resulting in a conviction); Steinhouse v. W.C.A.B. (A.P. Green Servs.), 783 A.2d 352, 356 (Pa. Commw. Ct. 2001) (“[A]s a general rule, prior bad acts not resulting in a conviction are not admissible to impeach a witness’ credibility.”) (quoting Commonwealth v. Smith, 467 A.2d 1120, 1125–26 (Pa. 1983)); George S. May Int’l Co. v. Int’l Profit Assocs., 628 N.E.2d 647 (Ill. App. 1993) (“Specific acts of misconduct by witness not resulting in criminal conviction may not be used to impeach, including arrests, indictments, charges, or actual commissions of offenses.”) (citing Knowles v. Panopoulos, 363 N.E.2d 805, 858 (Ill. 2d 1977)); State v. Morgan, 541 S.W.2d 385, 389 (Tenn. 1976) (citing with approval cases holding that charges, accusations and indictments may not be used to impeach a witness); In re Miller, No. 16-50532, 2016 WL 7115865, at *4 (Bankr. E.D. Ky. Dec. 6, 2016) (“It is not usually permissible to impeach a witnesses' credibility through an indictment not resulting in a conviction.”); People v. Sosa, No. 2-09-0514, 2011 WL 10099324, at *4 (Ill. App. Ct. Apr. 11, 2011) (“[A]n indictment, or a complaint is not usually admissible to impeach a witness.”).
