By: Donald L Swanson
Here are two questions under Federal Rule of Evidence 608(b):
- Is a bankruptcy discharge admissible to prove a person’s character for truthfulness or untruthfulness?
- How about a prior repossession of a person’s automobile? Is that probative of a person’s character for truthfulness or untruthfulness?
Such questions are specifically addressed in this opinion: United States v. Hadad, Case No. 24-CR-20220, in the U.S. District Court for Southern Florida (decided October 3, 2024).
Background
The Hadad Defendant tries to repossess a car . . . but ends up being charged, criminally, for carjacking and for brandishing a firearm during a crime of violence.
In the criminal proceeding, Defendant’s explanation is that he “got out of his car and walked up to the driver’s window of the Honda,” which window was open, “asked for the key” and told the Victim that “this is a repossession.”
Defendant contends he had a right to repossess the vehicle under the victim’s prior agreement with Defendant’s employer.
Motion in Limine
The Government files a motion in limine.
The Government wants to exclude evidence that the Victim previously had a car repossessed:
- Defendant wants to use such evidence to impeach the Victim’s character for truthfulness; and
- Defendant’s argument is that the Victim previously signed a contract to purchase a vehicle that the Victim knew he could not fulfill.
Rule 608(b)
The District Court applies Federal Rule of Evidence 608(b), which says (emphasis added):
“(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.”
The U.S. Eleventh Circuit Court of Appeals has declared:
- acts probative of untruthfulness, under such Rule 608(b) “include such acts as forgery, perjury, and fraud”; whereas,
- actions like seeking a bankruptcy discharge do not show a disregard for the truth that “would cast doubt on a witness’s veracity.”
Similarly, other courts in the Eleventh Circuit have found that such things as disciplinary reports and crimes like theft, robbery, or shoplifting are not probative of a witness’s character for truthfulness.
Applying Rule 608(b)
In this case:
- the prior repossession of a motor vehicle owned by the Victim is not akin to acts such as forgery, perjury, or fraud that would be probative of truthfulness;
- the Victim’s inability to make car payments, which led to the prior vehicle repossession, is more akin to an individual seeking to discharge debts that cannot be paid through a bankruptcy; and
- the Eleventh Circuit has expressly found that a bankruptcy discharge is not probative of a witness’s character for truthfulness.
Accordingly, the District Court rules: (i) the prior repossession of a vehicle owned by the Victim is inadmissible under Rule 608(b), and (ii) the Government’s motion in limine on this issue “is GRANTED.”
Conclusion
There we have it: filing bankruptcy and obtaining a discharge is not probative of a “character for truthfulness or untruthfulness” under Rule 608(b). Nor is having a car repossessed.
- The U.S. District Court for the Southern District of Florida has declared it to be so, based upon prior declarations of the U.S. Eleventh Circuit Court of Appeals.
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