United States v. Whitmore

United States Court of Appeals for the District of Columbia Circuit · 2004 · Evidence

359 F.3d 609 (D.C. Cir. 2004)

Updated August 22, 2026

EvidenceFed. R. Evid. 608(a)Fed. R. Evid. 608(b)Fed. R. Evid. 403cross-examinationimpeachmentcharacter for truthfulnessspecific instances of conduct

Facts

At trial, Officer Soto was the only witness who testified that he saw Whitmore throw a gun while fleeing police; Officer Russell testified only that Whitmore held the right side of his jacket while running and did not see him throw anything. Whitmore's defense was that Soto fabricated the gun story and planted the weapon. The district court barred Whitmore from cross-examining Soto about a prior Superior Court judge's finding that Soto had lied under oath, Soto's allegedly suspended driver's license and failure to report the suspension to supervisors, and Soto's failure to pay child support. Because of these rulings, Whitmore presented no defense evidence and was limited to minor inconsistency-based cross-examination.

Issue

Did the district court abuse its discretion by barring cross-examination of Officer Soto under Rule 608(b) about prior conduct probative of untruthfulness, and if so, was the error harmless? Also, did the district court properly exclude Whitmore's proposed Rule 608(a) character witnesses?

Rule

Under Rule 608(b), a witness may be cross-examined about specific instances of past conduct if they are probative of the witness's character for truthfulness or untruthfulness, though the conduct may not be proved by extrinsic evidence. Rule 403 generally favors admission in close cases, and when the witness is a key witness, a court should be especially cautious before cutting off impeachment; counsel needs only a reasonable basis grounded in supporting facts to ask degrading or incriminating questions on cross-examination.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a robbery trial in Washington, D.C., the prosecution's only eyewitness is Officer Daniel Mercer, who says he saw Lena Ortiz toss a knife into a vacant lot. Defense counsel has a transcript from an unrelated bench trial in Baltimore in which a judge expressly stated, "Officer Mercer lied under oath," but counsel does not seek to introduce the transcript and wants only to ask Mercer about that finding on cross-examination.

Should the trial judge permit the proposed cross-examination?

Explanation. Rule 608(b) permits cross-examination about specific instances of conduct probative of truthfulness, though not by extrinsic proof. The majority treated prior lying under oath as exceptionally probative and held total exclusion improper, particularly when the witness is the key prosecution witness. A perjury conviction is not required, and the examiner must accept the witness's answer without introducing the transcript.