EVIDENCE - IMPEACHMENT BY PRIOR BAD ACTS
Evidence has been presented that (the defendant)/([Name of Witness]) has committed conduct that may affect his/her credibility. This evidence is called impeachment evidence, and it is offered to show that the defendant's/witness's testimony is not believable or truthful. If you find that this conduct occurred, you may consider this impeachment evidence in determining what weight and credit to give the credibility of (the defendant)/([Name of Witness]). You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the defendant/witness, if at all.
Statutory Authority: 12 O.S. 1991, § 2608(B).
Notes on Use
The trial court should be especially careful when giving more than one limiting instruction to avoid inconsistencies between them. See Lewis v. State, 1998 OK CR 24 ¶ 22, 970 P.2d 1158, 1168 (limiting instructions on other crimes evidence and the basis of opinion testimony were confusing and contradictory when given together because the only evidence of other crimes came in as the basis of opinion testimony).
Prior to the adoption of section 2608(B), Oklahoma cases consistently forbade the use of specific instances of past conduct not constituting a conviction to impeach the credibility of any witness. Brown v. State, 1971 OK CR 257, 487 P.2d 963; Foster v. State, 1965 OK CR 146, 407 P.2d 1002; Clardy v. State, 95 Okl. Cr. 89, 240 P.2d 456 (1952); Guest v. State, 56 Okl. Cr. 129, 34 P.2d 1082 (1934); Litchfield v. State, 8 Okl. Cr. 164, 126 P. 707 (1912). Section 2608(B) permits inquiry into past conduct of a witness only where that former conduct is determined by the court, in its discretion, to be probative of truth and veracity. The latitude of the inquiry on cross-examination is also within the discretion of the court. United States v. Estell, 539 F.2d 697 (1Oth Cir. 1976).
Should the witness deny commission of the prior conduct on cross-examination, the attorney must "take the answer." As the first sentence of section 2608(B) specifies, no proof of specific instances of past unsavory conduct by extrinsic proof is permitted.
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