Section 608. Impeachment by Evidence of Character and Conduct of Witness
(a) Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence as to reputation, subject to the following limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
(b) Specific Instances of Conduct. In general, specific instances of misconduct showing the witness to be untruthful are not admissible for the purpose of attacking or supporting the witness’s credibility.
NOTE
Subsection (a). This subsection is derived from Commonwealth v. Dockham, 405 Mass. 618, 631, 542 N.E.2d 591, 599 (1989), and Commonwealth v. Daley, 439 Mass. 558, 563, 789 N.E.2d 1070, 1075 (2003). Cf. Commonwealth v. Daley, 439 Mass. at 562–563, 789 N.E.2d at 1075 (evidence of person’s bad character generally inadmissible to prove action in conformity therewith); Section 404, Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.
Unlike under Federal law, character for truthfulness cannot be proven by evidence of personal opinions or isolated acts. See Commonwealth v. Walker, 442 Mass. 185, 197–198, 812 N.E.2d 262, 273–274 (2004) (declining to adopt original Proposed Mass. R. Evid. 405[a]); Commonwealth v. Benjamin, 430 Mass. 673, 678 n.6, 722 N.E.2d 953, 958 n.6 (2000). Reputation evidence must be based on one’s reputation in the community or at the person’s place of work or business. Commonwealth v. Walker, 442 Mass. at 198, 812 N.E.2d at 274. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham, 405 Mass. at 631, 542 N.E.2d at 599 (community). A witness’s testimony must be based on the witness’s knowledge of the person’s reputation in the community, not of the opinions of a limited number of people. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871, 408 N.E.2d 883, 883–884 (1980). See Commonwealth v. Phachansiri, 38 Mass. App. Ct. 100, 109, 645 N.E.2d 60, 66 (1995); Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933–934, 416 N.E.2d 551, 552–553 (1981).
Subsection (a)(1). This subsection is derived from Commonwealth v. Favorito, 9 Mass. App. Ct. 138, 140, 399 N.E.2d 1101, 1101 (1980). “Evidence irrelevant to the issue at trial or to the witness’s reputation for truth and veracity is inadmissible to impeach a witness.” Commonwealth v. Cancel, 394 Mass. 567, 572, 476 N.E.2d 610, 615 (1985).
Subsection (a)(2). This subsection is derived from Commonwealth v. Sheline, 391 Mass. 279, 288, 461 N.E.2d 1197, 1204 (1984), and Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 455, 395 N.E.2d 476, 482–483 (1979). This limitation does not restrict the right of a defendant in a criminal case to offer evidence of his or her reputation for a character trait that would suggest he or she is not the type of person who would commit the crime charged. See Section 404(a)(1), Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: Character Evidence Generally: Character of the Accused. Neither “the offering of testimony that contradicts the testimony of a witness” nor “the introduction of prior out-of-court statements of a witness constitute[s] an attack on the witness’s character for truthfulness,” because “[t]he purpose and only direct effect of the evidence are to show that the witness is not to be believed in [that] instance.” Commonwealth v. Sheline, 391 Mass. at 288–289, 461 N.E.2d at 1204.
Subsection (b). This subsection is derived from Commonwealth v. LaVelle, 414 Mass. 146, 151, 605 N.E.2d 852, 855 (1993), and Commonwealth v. Bregoli, 431 Mass. 265, 275, 727 N.E.2d 59, 69 (2000). This applies whether or not the witness is a party, Commonwealth v. Binkiewicz, 342 Mass. 740, 755, 175 N.E.2d 473, 483 (1961), and whether the witness is impeached by cross-examination, Commonwealth v. Turner, 371 Mass. 803, 810, 359 N.E.2d 626, 630 (1977), or by the introduction of extrinsic evidence, Commonwealth v. LaVelle, 414 Mass. at 151, 605 N.E.2d at 855. On several occasions, the Supreme Judicial Court has declined to adopt Fed. R. Evid. 608(a) and Proposed Mass. R. Evid. 608(b), which permit inquiry into the details of prior instances of misconduct if probative of the witness’s character for veracity. See Commonwealth v. Almonte, 465 Mass. 224, 241, 988 N.E.2d 415, 428 (2013).
The Supreme Judicial Court has “chiseled” a narrow exception to the rule that the testimony of a witness may not be impeached with specific acts of prior misconduct, recognizing that in special circumstances (to date, only rape and sexual assault cases) the interest of justice would forbid its strict application. Commonwealth v. LaVelle, 414 Mass. at 151–152, 605 N.E.2d at 855–856. In Commonwealth v. Bohannon, 376 Mass. 90, 94–96, 378 N.E.2d 987, 990–992 (1978), the special circumstances warranting evidence of the prior accusations were that (1) the witness was the victim in the case on trial; (2) the victim/witness’s consent was the central issue at trial; (3) the victim/witness was the only Commonwealth witness on the issue of consent; (4) the victim/witness’s testimony was inconsistent and confused; and (5) there was a basis in independent third-party records for concluding that the victim/witness’s prior accusation of the same type of crime had been made and was false. Not all of the Bohannon circumstances must be present for the exception to apply. Commonwealth v. Nichols, 37 Mass. App. Ct. 332, 337, 639 N.E.2d 1088, 1091 (1994).
