TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 608, N.D.R.Ev., Evidence of Character and Conduct of Witness
The U.S. Supreme Court has approved a minor amendment to Fed.R.Ev. 608. The amendment changes language in subdivision (b) of the federal rule. Specifically, the words "character for truthfulness" are substituted for the word "credibility" in subdivision (b).
The rationale behind this change is that some federal courts were interpreting the term "credibility" broadly and, based on the broad interpretation, barring otherwise admissible extrinsic impeachment evidence relating to bias, competency and contradiction because it was pertinent to the credibility of the witness.
There is no indication in the limited number of North Dakota Supreme Court cases on N.D.R.Ev. 608 that North Dakota courts have been using a broad interpretation of the term "credibility." On the other hand, when a state rule is derived from a federal rule (as is Rule 608) North Dakota courts "treat the federal interpretation of the rule as persuasive authority." State v. Ensminger, 542 N.W.2d 722 (N.D. 1996). Consequently, North Dakota parties could rely on the broad federal interpretation in arguing for exclusion of certain evidence under N.D.R.Ev. 608.
A proposed amended version of N.D.R.Ev. 608, which incorporates the federal changes, is attached.