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§ 906.08 – Witness Rehabilitation – Character for truthfulness

State v. Juan Eugenio, 219 Wis.2d 391, 579 N.W.2d 642 (1998), affirming State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997)
For Eugenio: Eduardo M. Borda

Issue: Whether the defense engaged in attacks on the complainant’s character for truthfulness so as to open the door to opinion testimony that she was truthful.

Holding: § 906.08 supports rehabilitation of a witness “only in limited situations,” not “a broad range of attacks on a witness’s testimony…. Thus, contradiction in testimony is not to be equated pro forma with an attack on character.” Overruling prior court of appeals’ decisions, the court holds that a mere attack on veracity or motives doesn’t call into question a witness’s character; rather, the circuit court must determine that the attack represents an assertion not just that the witness is “lying in this instance, but is a liar generally.” The trial court properly exercised discretion in determining that such an attack was made here.

¶23     Upon review, we reject the broad “tantamount to an accusation that a witness is lying” test laid out by the court of appeals and overrule both Anderson and Hernandez.  An attorney may attack the veracity of a witness’s statements, and the intent or motive with which the witness makes the statements, without calling into question the general character of a witness for truthfulness.  See United States v. Dring, 930 F.2d 687, 690-92 (9th Cir. 1991)(distinguishing between direct attacks on testimony and indirect attacks on character for truthfulness); State v. Ross, 685 A.2d 1234, 1236-37 (N.H. 1996); Pierson v. Brooks, 768 P.2d 792 (Idaho App. 1989); State v. Carr, 725 P.2d 1287 (Or. 1986).

¶24     Character is evinced by a pattern of behavior or method of conduct demonstrated by an individual over the course of time.  Thus, allegations of a single instance of falsehood cannot imply a character for untruthfulness just as demonstration of a single instance of truthfulness cannot imply the character trait of veracity.  Viewing the attack on a witness in its context, the circuit court must believe that a reasonable person would consider the attack on the witness to be an assertion that the witness is not only lying in this instance, but is a liar generally. Only in such circumstances will rehabilitative evidence under Wis. Stat. § 906.08(1) be appropriate.

¶25     Having narrowed the interpretation of the scope of evidence admissible under Wis. Stat. § 906.08(1), we reaffirm that the determination of whether the character of truthfulness of a witness is being challenged is a matter left to the proper discretion of the circuit court.  This determination is not dependent upon particular labels placed on witnesses or even express accusations of untruth.  Rather, the inquiry is to be conducted by the circuit court based on the substance of the character allegations offered and on the manner and tenor in which the attack on the witness’s character for truthfulness is presented.

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