Is Rule 608(b) a Rule of Exclusion?

In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court “was an inappropriate form of impeachment.”  Slip Op. p. 13.  In support of this conclusion, the Court of Appeals cited, among other things, Evidence Rule 608(b).  That rule generally bars evidence of specific instances of a witness’s conduct for the purpose of attacking or supporting his credibility; however, specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness.  N.C.G.S. § 8C-1, Rule 608 cmt.  This post examines the use of Rule 608(b) in Hamilton to determine how a prosecutor can avoid improper impeachment.

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