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South Carolina
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RULE 608

RULE 608
EVIDENCE OF CHARACTER, CONDUCT AND BIAS OF WITNESS

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these 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 opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 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 (1) concerning the witness' character for truthfulness or untruthfulness, or (2) 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 the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.

(c) Evidence of Bias. Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

Note:

Except for the addition of subsection (c), this rule is identical to the federal rule.

Subsection (a) of this rule permits a witness' truthfulness to be impeached by opinion or reputation evidence. The general rule in South Carolina is that a witness' general reputation for truth and veracity is placed in issue when taking the witness stand. See State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990); State v. Robertson, 26 S.C. 117, 1 S.E. 443 (1887); State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct. App.1985), cert. denied, 286 S.C. 127, 332 S.E.2d 533 (1985). Formerly, although evidence of a person's general reputation in the community was admissible, opinion testimony was not admissible. State v. Groome, 274 S.C. 189, 262 S.E.2d 31 (1980); In re: Greenfield's Estate, 245 S.C. 595, 141 S.E.2d 916 (1965). The provision prohibiting bolstering of a witness until after the witness' credibility is attacked is consistent with prior South Carolina law. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981); Woods v. Thrower, 116 S.C. 165, 107 S.E. 250 (1921). However, there was an exception allowing bolstering prior to attack when the witness was a stranger to the community. State v. Lynn, supra; Woods v. Thrower, supra. This exception is not included in the rule.

As to subsection (b), no South Carolina cases have been found which permit cross-examination regarding specific acts to show truthfulness. The use of specific acts to attack credibility is similar to prior South Carolina case law which allowed a witness to be cross-examined about prior bad acts if they constituted crimes of moral turpitude. State v. Outlaw, 307 S.C. 177, 414 S.E.2d 147 (1992); State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990); State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979). The cross-examiner was required to take the answer given by the witness and could not use extrinsic evidence or other testimony to prove the bad act. State v. Outlaw, supra; State v. Major, supra. Additionally, the inquiry could only go so far as to bring out the general nature of the misconduct and could not go into specific details. State v. Outlaw, supra; State v. Major, supra.

Subsection (b), like its federal counterpart, does not set forth what conduct may adversely affect a witness' credibility. The former case law standard, which allowed impeachment if the conduct was a crime of moral turpitude, is not the appropriate standard in light of the Court's decision to abandon the moral turpitude standard under Rule 609. Instead, the trial courts should be guided by the decisions of the federal courts which limit inquiry into those specific instances of misconduct which are "clearly probative of truthfulness or untruthfulness" such as forgery, bribery, false pretenses, and embezzlement. See Weinstein's Evidence, ΒΆ 608[05] (1994). This will reduce the kinds of misconduct which can be inquired into from that permitted under prior law. Further, this rule, like the prior case law, does not allow a cross-examiner to go on a "fishing expedition" in the hopes of finding some misconduct. State v. McGuire, supra. The decision whether to allow such impeachment remains in the discretion of the trial judge. Id.

Subsection (c) was added to address impeachment by showing bias or impartiality. State v. Brewington, 267 S.C. 97, 226 S.E.2d 249 (1976); North Greenville College v. Sherman Const. Co., Inc., 270 S.C. 553, 243 S.E.2d 441 (1978).