(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) 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.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.
Comment
Paragraph (a) eliminates the former requirement that a party could prove credibility only by evidence of reputation, and now allows a party to attack or support the credibility of a witness with the opinion of another witness or with evidence of reputation.[1] A party may introduce evidence supporting a witness's credibility only after the other party has attacked the witness's character for truthfulness,[2] and only if the evidence offered relates to the character of the witness for truthfulness.
Paragraph (b) limits the admissibility of specific instances of conduct to prove the character of a witness. Once a witness testifies on direct examination, the other party may cross-examine that witness about specific instances of that witness's conduct,[3] but only if the trial court in its discretion allows it, and only if the specific instances of conduct are probative of truthfulness or untruthfulness.[4] If a witness testifies about the character of another witness for truthfulness or untruthfulness, on cross-examination the other party may ask the witness if the witness is aware of certain specific instances of conduct on the part of the other witness, but again only if the trial court in its discretion allows it, and only if probative of truthfulness or untruthfulness. The evidence must be of a specific instance of conduct and not a general pattern of behavior.[5] The party may introduce evidence of specific instances of conduct even though the witness has not been convicted of a crime as a result of those acts.[6] The party may not ask a witness on cross-examination about specific instances of conduct that are not true or that the party would not be able to prove if allowed to do so.[7] But the rule provides that a party may not prove these matters by extrinsic evidence, which means the party is bound by the answers the witness gives on cross-examination, and thus may not introduce other evidence to refute the answers given. If the trial court rules that a party may impeach a witness and the other party then does not call the witness, the other party will have waived on appeal any challenge to the trial court's ruling.[8]
Although this rule limits the admissibility of evidence of opinion, reputation, or specific instances of conduct offered to prove the character of a witness for being truthful or untruthful, Arizona continues to be liberal in the admission of other evidence pertaining to credibility of a witness. Arizona follows the rule that all evidence that tests, sustains, or impeaches the credibility or character of a witness is generally admissible, and that a party against whom a witness is produced has the right to present evidence that may in the slightest degree affect the witness's credibility,[9] subject, however, to the limitation that a party cannot impeach a witness on a collateral matter.[10] These concepts are not contained in any specific rule, but are instead controlled by Rules 401 and 402, defining relevant evidence and excluding irrelevant evidence, and Rule 403, which allows the trial court to exclude relevant evidence under the circumstances in that rule.[11] Impeachment and rehabilitation evidence is therefore admissible if it is relevant (makes the existence of any fact of consequence more or less probable), and impeachment evidence on a collateral matter is either irrelevant, or if relevant, subject to exclusion under Rule 403.
The difference between impeachment and rehabilitation evidence admissible under Rule 608 and that admissible under Rules 401 and 402 is that evidence under Rule 608 shows the witness's character for untruthfulness and is based on events unrelated to the matter being litigated, while evidence under Rules 401 and 402 shows either motive to be untruthful or specific instances of conduct inconsistent with trial testimony, which in either case must be related to the matter being litigated. The purpose of Rule 608 is to keep the witness from having to justify all his or her prior activities except those directly bearing on the witness's character for truthfulness or untruthfulness. On the other hand, impeachment and rehabilitation testimony, both from observation or in the form of expert opinion, is admissible and is not subject to the limitations of Rule 608 if it deals with how the witness's physical or mental condition affected the witness's ability to perceive, remember, or relate at trial, and if it relates to some fact of consequence in the litigation.[12] Specific instances of conduct are...
