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39. How much, if any, of the witness's testimony is admissible?
A plaintiff sued the insurer of her home after the insurer denied coverage for water damage to the home allegedly caused by a frozen plastic pipe that burst. At trial, the insurer called as an expert witness an engineer, who testified that the pipe had burst because of age rather than freezing. On cross-examination, the engineer admitted that five years earlier, he had been convicted of tax fraud, even though he had asserted that it was his accountant's error. In response, the insurer calls a witness, who is well acquainted with the engineer and his reputation, to testify that (1) in the witness's opinion, the engineer is a truthful person, and (2) the engineer's neighbors all describe him as a truthful person.
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A party may not bolster or accredit the testimony of his witness until the witness has been impeached. A witness who has been impeached, however, may be rehabilitated on redirect examination or by extrinsic evidence. When the witness's general character for truthfulness and veracity has been attacked, the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for the truthfulness of the impeached witness or give their opinion as to the truthfulness of the impeached witness. Fed. R. Evid. 608(a).
A witness's bad character for truthfulness is not considered a collateral matter, regardless of whether that witness has affirmatively asserted his good character for truthfulness.
An exception to the hearsay rule exists regarding «[a] reputation among a person's associates or in the community concerning the person's character.» Fed. R. Evid. 803(21).
A is correct. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character trait. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
B is incorrect. This is a misstatement of the law. No «rule of preference» exists that allows only reputation evidence to be admitted when both reputation and opinion evidence are offered for purposes of impeachment or rehabilitation. Fed. R. Evid. 608(a). Therefore, either form is admissible here.
C is incorrect. Under FRE 803(21), a witness's reputation among his or her associates or in the community concerning the witness's character meets an exception to the hearsay rule. Therefore, the witness's testimony regarding the engineer's reputation for truthfulness would be admissible.
D is incorrect. Character evidence regarding a witness's truthfulness is never considered a collateral matter, regardless of whether that witness has affirmatively asserted his good character for truthfulness. Moreover, evidence of a witness's good character for truthfulness may be admissible after an attack on his character. The evidence does not need to concern the expert's qualifications as an expert because the witness's character for truthfulness was attacked.