1. Xxxxxxxxxxxxxxxx
Memo
To: xxxxxxxxxxxxxxxxxx
From: Joshua Normand
CC:
Date: March 1, 2007
Re: Federal Rules of Evidence 608 and 609- Prior Bad Acts and
Convictions excluded from evidence
The following cases are instances in which the court has excluded
prior bad acts and convictions from evidence.
1: U.S. v. Ling, 581 F.2d 1118. In prosecution for violation of federal
drug laws, prosecutor should have accepted defendant’s answer to
cross-examination question if he had ever fired gun on public street
and should not have attempted to impeach defendant’s credibility
on that collateral issue by use of police officer’s testimony.
It is a general rule that arrest without more does not impeach the
integrity nor impair the credibility of a witness because “(i)t happens
to the innocent as well as the guilty.” Michelson v. United States,
335 U.S. 469,482, 69 S. Ct. 213, 222, 93 L. Ed. 168 (1948). This
rule is based upon a clear recognition of the fact that the probative
value of such evidence is so overwhelmingly outweighed by its
inevitable tendency to inflame or prejudice the jury against the
defendant that “total and complete exclusion is required in order
that the right to trial by a fair and impartial jury may not be impaired.”
United States v. Pennix, 313 F.2d. 524, 529 (4 Cir. 1963).
In United States v. Blackshire, 538 F.2d 569 (4 Cir.
1976),Blackshire’s testimony that he had used mescaline was not
useful to impugn his credibility. Rather, it served merely to prejudice
the jury. The rebuttal testimony violated the rule, long recognized in
this circuit, that extraneous evidence of misconduct cannot be
introduced to impeach a witness. 538 F.2d at 572 (citations
omitted). See United States v. Morlang, 531 F.2d 183, 190 (4 Cir.

2. 1975).
2: The People of the State of Illinois v. Mary Long, 316 Ill. App.3d
919, 738 N.E.2d 216, 250 Ill. Dec. 252. A witness’ credibility may
not be impeached by inquiry into specific acts of misconduct which
have not led to a conviction. Impeachment which tends to impugn a
witness’ general moral character is impermissible.
As the direct examination of Millaun Brown was commencing, the
court interjected a question about a police officer calling the State’s
Attorney’s Office. The state has not provided us with a citation for
this “rule”. Even if such a regulation did exist, it was clearly not a
proper subject of questioning. It was unrelated to a material issue in
the case and the question may have impaired the witness’
credibility. Fugate v. Sears, Roebuck and Co., 12 Ill. App.3d 656,
674, 299 N.E.2d 108, 122 (1973). “In Illinois a witness’ credibility
may not be impeached by inquiry into specific acts of misconduct
which have not led to a conviction.” Podolsky and Associates L.P. v.
Discipio, 297 Ill.App.3d 1014, 1026, 232 Ill.Dec.98, 697 N.E.2d 840
848 (1998).
3: U.S. V. Morlang, 531 F.2d 183. Court erred in permitting
evidence as to a prior statement of prosecution witness, which
implicated defendant, in order to impeach such witness, since
prosecution would thereby by indirection, in the name of
impeachment, present testimony to jury not otherwise admissible.
While it is the rule in this circuit that a party calling a witness does
not vouch for his credibility, United States v. Norman, 518 F.2d
1176 (4
th
Cir. 1975), it has never been the rule that a party may call
a witness where his testimony is known to be adverse for the
purpose of impeaching him. The courts have consistently refused to
sanction such a practice.
4:Beasley v. United States, 218 F.2d 366.For impeachment
purposes, evidence of witness’ arrest is inadmissible, but evidence
of his conviction is admissible. Where time for appeal had not
expired following defendants’ prior conviction, and defendant had
not been sentenced for such prior conviction, evidence of such
prior conviction was not admissible in subsequent criminal
proceeding.
Appellant testified in his own behalf. He was cross-examined about
his arrest for selling narcotics on another occasion. Upon objection
the prosecutor said appellant was convicted, meaning that since he
not only was arrested but was convicted the evidence was
competent. But not so in this instance; for, as soon appeared at a

3. bench conference, the conviction referred to was recent and
appellant had not yet been sentenced. Since the time for appeal
had not expired evidence of the conviction was not admissible.
5: Mary Josephine Rose and Rita Krilcic v. B.L. Cartage Company,
110 Ill.App.2d 260, 249 N.E.2d 199. Evidence that former police
officer, who testified for plaintiffs in automobile accident case, had
left police force rather than face charges of drinking in uniform, filing
false report and committing perjury under oath at an inquest
concerning another occurrence was properly excluded.
While it is proper to reflect upon credibility of witness by showing
that his reputation for truth and veracity in neighborhood where he
lives is bad, it is not permissible to reflect upon his credibility by
establishing that on former occasion he lied about an entirely
unrelated matter.
The court finds no error in excluding evidence as to Lindsay’s
resignation from the police force. We believe the controlling rule is
stated in Elliot v. Brown, 349 Ill.App. 428, 434, 111 N.E.2d 169, 171
(1953):
6: Terry Lynn Asbury v. Bobby Moses and Commonwealth of
Virginia, 2003 WL 22111033 (Va. Cir. Ct.))
Plaintiff alleged that she was falsely imprisoned and battered by
Moses and that the Virginia State Police Department was
responsible for his actions under the doctrine of respondeat
superior. Plaintiff denied encouraging defendant’s advances in any
way. The court excluded any evidence regarding plaintiff’s claims
of prior bad acts, negligent retention, negligent supervision and
intentional infliction of emotional distress.
7: The People of the State of Illinois v. Robert P., 354 Ill. App.3d
1051, 821 N.E.2d 1259, 290 Ill. Dec. 685.
Defendant was not entitled to impeach child victim in trial for
aggravated criminal sexual assault with specific act evidence that
she had previously falsely accused him of biting her, where alleged
lie about biting had no bearing on whether defendant sexually
assaulted victim.
Defendant attempted to introduce evidence that A.P. had previously
falsely accused him of biting her. This attempt at impeachment was
based on a specific bad act: a previous specific lie that is not
closely related to the crime with which defendant is charged. Our
supreme court recently affirmed that specific-act impeachment is
prohibited in Illinois. People v. Santos, 211 Ill.2d 395, 286 Ill.Dec.

4. 102, 813 N.E.2d 159 (2004).
While the Santos decision dealt with the admissibility of evidence
under the rape shield statute, which is not at issue on this point of
law in this case, the court’s comment’s are still relevant here.
“What defendant wished to do by introducing this evidence was to
impeach the victim’s credibility with a specific act of untruthfulness.
He wished to show the jury that T.K. had lied on one occasion—
when she told medical personnel she had not had sexual
intercourse with anyone else in the previous 72 hours—in order to
support his argument that when she testified in court she was lying
about what had occurred between her and the defendant. Far from
being constitutionally required, specific-act impeachment is
prohibited in Illinois.” (Emphasis in original.) Santos, 211 Ill.2d at
403-04, 286 Ill. Dec. 102, 813 N.E.2d 159.
We hold it was not error to exclude evidence of defendant’s false
accusation regarding the biting incident.
8: United States v. Blackshire, 538 F.2d 569. Evidence that
defendant charged with distributing and conspiring to distribute
heroin had used mescaline was not useful to impugn defendant’s
credibility and served merely to prejudice the jury and should not
have been admitted.
Extraneous evidence of misconduct cannot be introduced to
impeach a witness.
The district cautioned the jury that this evidence was not any
indication of Blackshire’s guilt, but he admitted it for the purpose of
testing Blackshire’s credibility. This, we believe, was error that
should not be repeated on retrial. Blackshire’s testimony that he
had used mescaline was not useful to impugn his credibility.
Rather, it served merely to prejudice the jury. Cf. United States v.
Pennix, 313 F.2d 524, 528 (4
th
Cir. 1963). The rebuttal testimony
violated the rule, long recognized in this circuit that extraneous
evidence of misconduct cannot be introduced to impeach a
witness. See Pullman Co. v. Hall, 55 F.2d 139, 141 (4
th
Cir. 1932).
See Federal Rule of Evidence 08(b); 3 Weinstein and Berger,
Commentary on Rules of Evidence P 08(05).
9: United States v. Garcia, 531 F.2d 1303.
A mere arrest without conviction for any offense is inadmissible to
show general lack of credibility.

5. It is perfectly clear that normally the mere existence of an arrest is
not admissible to impeach the credibility of a witness. Jenkins v.
General Motors Corp., 5 Cir. 1971, 446 F.2d 377, cert. denied, 405
U.S. 922, 92 S. Ct. 959, 30 L.Ed.2d 793 (1972); Brown v. Coating
Specialists, Inc., 5 Cir. 1972, 465 F.2d 340; Truman v. Wainwright, 5
Cir. 1975, 514 F.2d 150, 152.
10: United States v. Lewis, 26 F.2d 940.
Prior felony conviction for distributing heroin was inadmissible
under rule as pertaining to a crime involving dishonesty or false
statement notwithstanding claim that an individual who lived by
surreptitiously selling drugs on the street to innocent members of
the community engaged in a crime involving dishonesty. Fed.
Rules Evid. Rule 609(a)(2), 28 U.S.C.A.
It is not the manner in which the offense is committed that
determines its admissibility under rule governing evidence of
crimes involving dishonesty or false statement, but whether the
crime involves dishonesty or false statement as an element of the
statutory offense. Fed. Rules Evid. Rule 609(a)(2), 28 U.S.C.A.
The Government contended at trial that Lewis’ prior conviction was
admissible under both Rule 609(a)(1) and (a)(2). The trial judge
first rejected, as we do here reject, the Government’s contention
that the crime of heroin distribution involves dishonesty or false
statement… While Millings involved a conviction for simple
possession of a narcotic drug, we do not discern that a conviction
for distributing heroin is any more indicative of dishonesty or false
statement.
Contrary to the Government’s construction, we do not perceive that
it is the manner in which the offense is committed that determines
its admissibility. Rather, we interpret Rule 609(a)(2) to require that
the crime “involved dishonesty or false statement” as an element of
the statutory offense. Therefore, Lewis’ prior felony conviction,
involving as it did only “unlawful distribution of a controlled
substance”, did not involve “dishonesty or false statement” within
the meaning of Rule 609(a)(2).

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