27-608. Rule 608. Evidence of character and conduct of witness; opinion and reputation evidence of character; specific instances of conduct; privilege against self-incrimination.

(1) The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: (a) The evidence may refer only to character for truthfulness or untruthfulness, and (b) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(2) Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in section 27-609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness (a) concerning his character for truthfulness or untruthfulness, or (b) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

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Annotations

1. Credibility

2. Miscellaneous

1. Credibility

Subsection (2) of this section permits questioning during cross-examination only on specific instances of conduct not resulting in a criminal conviction. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

Subsection (2) of this section does not prohibit inquiry into specific instances of a witness' conduct; it only prohibits proof of that conduct by extrinsic evidence. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

The application of subsection (2) of this section to exclude extrinsic evidence of a witness' conduct is limited to instances where the evidence is introduced to show a witness' general character for truthfulness. Evidence relevant to a material issue is not rendered inadmissible because it happens to include references to specific bad acts of a witness, and such evidence should be admitted where it is introduced to disprove a specific fact material to the case. Subsection (2) of this section does not bar evidence introduced to contradict—and which the jury might find to disprove—a witness's testimony as to a material issue of the case. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Whether section 27-404(2) or this section applies to the admissibility of other-acts evidence depends on the purpose for which the proponent introduced the other-acts evidence. Section 27-404(2) applies when extrinsic evidence is offered as relevant to a material issue in the case. This section applies when extrinsic evidence is offered to impeach a witness, to show the character of the witness for untruthfulness—in other words, where the only theory of relevance is impeachment by prior misconduct. So, because subsection (2) of this section affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness' credibility, it in no way affects the admission of evidence of such prior acts for other purposes under section 27-404(2). Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).

Once a witness' character for truthfulness has been attacked, the prosecution may, under this section, adduce rebuttal evidence on that issue. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

A prostitution offense does not substantially impugn credibility, since such conduct does not necessarily entail dishonesty or false statement and, therefore, it is not probative of untruthfulness. State v. Williams, 219 Neb. 587, 365 N.W.2d 414 (1985).

It is within the discretion of the trial court to admit character evidence to support the credibility of a witness whose credibility has been attacked by opinion or reputation evidence or otherwise. State v. Steinmark, 201 Neb. 200, 266 N.W.2d 751 (1978).

Whether a showing of inconsistent statements by a witness is an attack on credibility entitling the witness to present evidence of veracity is a matter for the discretion of the trial court. State v. King, 197 Neb. 729, 250 N.W.2d 655 (1977).

Specific instances of conduct of witness relative to credibility, other than conviction of crime, may not be proved by extrinsic evidence, but in discretion of court may be inquired into on cross-examination concerning character for truthfulness or untruthfulness. State v. Fonville, 197 Neb. 220, 248 N.W.2d 27 (1976).

To be admissible, reputation evidence of a witness's untruthfulness must embody the collective judgment of the community and must be derived from a group whose size constitutes an indicium of inherent reliability. The community in which the party has the reputation for untruthfulness must be sufficiently large; if the group is too insular, its opinion of the witness's reputation for untruthfulness may not be reliable because it may have been formed with the same set of biases. State v. Brooks, 23 Neb. App. 560, 873 N.W.2d 460 (2016).

2. Miscellaneous

Subsection (2) of this section does not affect the admissibility of evidence that has become relevant and admissible under the specific contradiction doctrine. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).

Testimony of deputy sheriff was improper under this section. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).

Evidence of conviction of a crime is, in some respects, more limited than under former section, but is not restricted to felonies as such. State v. Lang, 197 Neb. 47, 246 N.W.2d 608 (1976).

A therapist's testimony that she observed the defendant look astonished when he explained to the therapist he had been charged with sexually abusing a minor and that the defendant denied the abuse to the therapist was inadmissible under subsection (2) of this section. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).

The type of character evidence admissible under this section and section 27-405 does not include the opinion of an expert witness regarding the truthfulness of another witness based upon purported scientific studies. State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 493 (1993).