Using FRE 608 to Attack the Credibility of Witnesses in Counterfeiting Cases

Using FRE 608 to Attack Credibility of Witnesses in Counterfeiting Cases

What is FRE 608?

FRE 608 allows a party to attack or support the credibility of a witness by testifying about the witness’s character for truthfulness or untruthfulness, or by asking the witness directly about specific instances of conduct that are probative of their character for truthfulness. There are limits on the types of evidence that can be used under FRE 608, but it still gives the defense a potent weapon to use against prosecution witnesses in counterfeiting cases.

Attacking Credibility with Opinion and Reputation Evidence

Under FRE 608(a), a party can call a witness to testify about another witness’s reputation for having a character for truthfulness or untruthfulness. This allows the defense to find people who know one of the prosecution’s witnesses and can testify that they have a reputation for being dishonest or deceitful.

In addition to reputation evidence, FRE 608(a) also allows a party to elicit opinion testimony about a witness’s character for truthfulness. So the defense could call a witness and ask their opinion on whether one of the prosecution’s witnesses is an honest person or not. This evidence can be very damaging to a prosecution witness’s credibility.

Questioning the Witness About Specific Instances of Conduct

FRE 608(b) allows a party to question a witness directly about specific instances of conduct that are probative of their character for truthfulness or untruthfulness. So during cross-examination, the defense can ask prosecution witnesses about lies they have told in the past, crimes of deception they have committed, and other occasions when they have been untruthful.

While the witness’s answers to these questions can’t be contradicted with extrinsic evidence, just asking the questions can plant doubt in the jury’s mind about the witness’s credibility. FRE 608(b) gives the defense a lot of leeway to ask probing questions attacking the witness’s integrity.

Using FRE 608 Effectively in Counterfeiting Cases

To use FRE 608 to maximum effect, the defense needs to investigate the backgrounds of the prosecution’s key witnesses to uncover evidence of their lack of truthfulness. Some techniques for doing this include:

• Searching court records for any crimes or fraud committed by the witnesses
• Interviewing people who know the witnesses to ask about their reputations for honesty
• Looking for statements the witnesses made in the past that can be contradicted
• Examining the witnesses’ social media posts for evidence of deception or dishonest acts

In counterfeiting prosecutions, common witnesses that could be attacked using FRE 608 include:

1. Forensic specialists

The prosecution will often call forensic specialists to testify that items seized from the defendant were counterfeit. By investigating these witnesses’ qualifications, previous mistakes, and competence, the defense may uncover flaws that could be used to attack their credibility.

2. Informants/cooperating witnesses

Prosecutions for counterfeiting often rely heavily on informants or cooperating witnesses who are testifying in exchange for leniency in their own cases. These witnesses have strong incentives to lie, which the defense can emphasize through reputation and opinion evidence under FRE 608(a).

3. Undercover agents

Law enforcement frequently uses undercover operations to infiltrate counterfeiting rings. But undercover agents often engage in deception and dishonest conduct themselves. Skillful cross-examination under FRE 608(b) can expose an agent’s own lies and illegal behavior.

Court Rulings on Using FRE 608 in Counterfeiting Cases

There are several federal court decisions discussing the use of FRE 608 in counterfeiting and false statement prosecutions. These cases illustrate some best practices for employing FRE 608:

• U.S. v. Ceiling Fan – Allowing defense questioning about prosecution witness’s prior acts of deceit and false testimony
• U.S. v. Lopez – Permitting questions about witness lying on immigration forms to attack credibility
• U.S. v. Kelley – Upholding cross-examination questions exposing flaws in agent’s investigative techniques

These and other opinions give the defense flexibility to utilize FRE 608 to undermine prosecution witnesses in counterfeiting cases. Defense lawyers should study these rulings to craft effective credibility attacks.

Conclusion

Attacking the credibility of prosecution witnesses is one of the best ways to defend counterfeiting charges in federal court. Through diligent investigation of witnesses and skillful use of FRE 608, the defense can land major blows against the prosecution’s case.