Federal evidence rule 608(b): Gateway to the minefield of witness preparation

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1263-1294

  Shargel, Gerald L ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 39349101009     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (255)

1. James Boswell, The Life of Samuel Johnson, LL.D. 262 (Percy Fitzgerald ed., Swan Sonnenschein & Co., Ltd. 1900) (1792).
2. Fed. R. Evid. 608(b).
3. Paul R. Rice, The Evidence Project: Proposed Revisions to the Federal Rules of Evidence with Supporting Commentary, 171 F.R.D. 330, 355 (1997).
4. United States v. Perez-Perez, 72 F.3d 224,227 (1st Cir. 1995).
5. United States v. Martz, 964 F.2d 787, 789 (8th Cir. 1992);
6. see also Daniel D. Blinka, Ethical Firewalls, Limited Admissibility, and Rule 703, 76 Fordham L. Rev. 1229, 1242 (2007) (suggesting that limiting cross-examination in this way may also prevent the jury from drawing unfair and prejudicial inferences).
7. Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469,1469 (1966).
8. Id.
9. Monroe H. Freedman & Abbe Smith, Understanding Lawyers' Ethics 159-95 (3d ed. 2004).
10. Id. at 161.
11. Id.
12. See Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of "Coaching, " 1 Geo. J. Legal Ethics 389, 392 (1987) (explaining that although the Model Rules do not demand that an attorney prepare his client to testify, this obligation is strongly implied by the attorney's more general duty of zealous advocacy).
13. See, e.g., Stephen Gillers, Monroe Freedman's Solution to the Criminal Defense Lawyer's Trilemma Is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).
14. Marvin E. Frankel, Clients ' Perjury and Lawyers ' Options, 1 J. Inst, for Study Legal Ethics 25, 27 (1996).
15. Frankel claims that Freedman "withdrew long ago his blessing" for giving a client information that might tempt him to commit perjury, and Frankel cited to Freedman's treatise entitled Lawyers ' Ethics in an Adversary System. Id.
16. (citing Monroe H. Freedman, Lawyers' Ethics in an Adversary System 59, 61, 69-70, 71-76 (1975)).
17. Judge Frankel overstates Freedman's capitulation. In his treatise, Freedman still condones giving a client information that might tempt him to commit perjury but "on a different, and more limiting, rationale." Freedman, supra, at 75. Freedman writes, I adhere to my earlier position that there are situations in which it may be proper for the attorney to give the client legal advice even though the attorney has reason to believe that the advice may induce the client to commit perjury. There does come a point, however, where nothing less than "brute rationalization" can purport to justify a conclusion that the lawyer is seeking in good faith to elicit truth rather than actively participat[e] in the creation of perjury.
18. Id.
19. Frankel, supra note 13, at 26.
20. See id. at 40-41.
21. William H. Simon, The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703, 1704-05 (1993).
22. See id. at 1704.
23. Id. at 1725.
24. Id.
25. See Geoffrey C. Hazard, Jr., The Client Fraud Problem as a Justinian Quartet: An Extended Analysis, 25 Hofstra L. Rev. 1041, 1048 (1997).
26. Id. at 1049.
27. Id.
28. See id. at 1051-52.
29. Id. at 1052.
30. Id.
31. An attorney engaged in this sort of misconduct in In re Storment, 873 S.W.2d 227, 228-31 (Mo. 1994). The attorney in Storment was disbarred because-during a recess in a custody battle-he told his client that she "better deny" a true allegation that she had had adulterous sex in the same motel bed in which her baby was sleeping.
32. Id. at 228. A stenographer's tape recorder caught the attorney's transgression.
33. Id. at 228-29.
34. See Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 3 (1995);
35. see also Model Rules of Prof'1 Conduct R. 1.2(d), 3.3(a)(3), 3.4(b) (2006).
36. Model Rules of Prof 1 Conduct R. 1.2(d).
37. Id. R. 3.3(a)(3).
38. Id. R. 3.4(b).
39. Freedman, supra note 6, at 1478.
40. Id. at 1470.
41. See Jay Sterling Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 405-07 (1994).
42. Freedman, supra note 6, at 1471.
43. Hazard, supra note 20, at 1052.
44. Witness preparation also helps the system. It "promotes a more efficient administration of justice and saves court time" by concentrating the witness's attention on what is relevant. Brian N. Smiley, The Law and Ethics of Witness Preparation (PLI Corp. Law and Practice Course Handbook Series No. B0-001K, 1998), WL 1061 PLI/Corp 659.
45. John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 279 (1989).
46. W. William Hodes, The Professional Duty to Horseshed Witnesses Zealously-Within the Bounds of the Law, 30 Tex. Tech. L. Rev. 1343, 1350 (1999).
47. Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. Rev. 315, 336 (1987) (urging lawyers to move toward the "informed consent" model used by doctors so as to maximize client autonomy).
48. Id.
49. Utah State Bar Ethics Advisory Op. Comm., Op. 02-10 (2002), http://www.utahbar.org/rules_ops_pols/ethics_opinions/op_02_10.html;
50. cf. Utah State Bar Ethics Advisory Op. Comm., Op. 06-04 (2006), http://www.utahbar.org/rules_ops_pols/ethics_opinions/op_06_04.html (stating that a criminal defense attorney can - in limited circumstances - delay giving his client certain information).
51. See Geders v. United States, 425 U.S. 80, 88-89 (1976);
52. Gideon v. Wainwright, 372 U.S. 335, 345 (1963).
53. See, e.g., Harry I. Subin, The Criminal Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case, 1 Geo. J. Legal Ethics 125 (1987) (attacking role morality and arguing that a criminal defense attorney does not have a moral right to present a false defense).
54. Simon, supra note 16, at 1705.
55. Frankel, supra note 13, at 37.
56. See Simon, supra note 16, at 1706.
57. Gillers, supra note 12, at 825.
58. See Simon, supra note 16, at 1707.
59. Id.
60. Id.
61. Frankel, supra note 13, at 26.
62. Courts roundly condemn coaching. See, e.g., Webb v. State, 663 A.2d 452, 459 (Del. 1995) ("It is antithetical to the process of truth-seeking that any witness be permitted to consult with counsel during cross-examination to be 'coached' on what to say, or not say, or how-to-say-it, or how to control or 'put a better face on' testimonial damage already done.");
63. see also State v. Earp, 571 A.2d 1227, 1235 (Md. 1990) (stating that attorneys should "exercise great care to avoid suggesting to the witness what his or her testimony should be");
64. D.C. Bar Legal Ethics Comm., Op. 79 (1979) (stating that lawyers should not "engage in suppressing, distorting or falsifying the testimony that the witness will give").
65. Courts and commentators do not use the same terminology to describe this dichotomy. Many, probably most, refer to it as I do: proper "witness preparation" versus illicit "coaching." However, some allude to legitimate and illegitimate "coaching." See, e.g., United States v. Poppers, 635 F. Supp. 1034, 1037 (N.D. Ill. 1986). Meanwhile, Richard Wydick writes of "witness preparation" versus different "grades" of witness coaching (i.e., overt, covert, and inadvertent "inducement").
66. See Wydick, supra note 27, at 1-4.
67. See, e.g., Charles Silver, Preliminary Thoughts on the Economics of Witness Preparation, 30 Tex. Tech. L. Rev. 1383, 1383 (1999);
68. see also Poppers, 635 F. Supp. at 1037.
69. John W. Allen, Emerging from the Horse Shed and Still Passing the Smell Test-Ethics of Witness Preparation and Testimony, 32 Brief 56, 58 (2003).
70. Wydick, supra note 27, at 1-4. To Wydick, an attorney's culpability for inducing a client to lie hinges on intent. If an attorney knows he is inducing his client to lie, then he is culpable. Wydick urges attorneys to parse their words carefully so as to avoid even inadvertent inducement. He writes that in conversations with clients "a lawyer should continuously think about whether there is a legitimate purpose for the next question or the next statement."
71. Id. at 52. Wydick's analysis, while helpful, is problematic because statements and questions often have multiple purposes. If an attorney can see both legitimate and illegitimate uses for the information he conveys, does that mean he should withhold the information on the assumption that his client will misuse it? If the attorney withholds the information, does he not violate his duty to fully advise his client? Conversely, if the attorney provides the information, is he automatically guilty of covert inducement? Moreover, if culpability hinges on intent, then are less sophisticated attorneys who fail to perceive multiple uses somehow less culpable? Do we condemn Prince Hamlet and pardon Homer Simpson?
72. See Gillers, supra note 12, at 822-25.
73. In re Foley, 787 N.E.2d 561, 569 (Mass. 2003).
74. Id. at 571.
75. Id. at 570.
76. The U.S. Supreme Court used this rationale in Nix v. Whiteside, 475 U.S. 157, 173 (1986). In that case, a defendant argued that his attorney violated his right to testify by threatening to withdraw if the defendant testified falsely. The Court rejected this argument, finding that the lawyer's "admonitions to his client can in no sense be said to have forced respondent into an impermissible choice between his right to counsel and his right to testify as ... there was no permissible choice to testify falsely."
77. Id.
78. J. Alexander Tanford, The Ethics of Evidence, 25 Am. J. Trial Advoc. 487, 554-55 (2002).
79. Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 Ky. L.J. 1001, 1016 (1999).
80. Id. at 1011.
81. See, e.g., Frankel, supra note 13, at 38 (bemoaning the "low esteem in which we are held" after "extravaganzas like the O.J. Simpson trial");
82. see also Subin, supra note 43, at 153 (noting that the "public at large" sees the "defense attorney as a person unconcerned with the truth and therefore not to be trusted, little more than the alter ego, if not alter id, of his or her client").
83. See Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976).
84. Stephen King, Bag of Bones 167-68 (1998).
85. Hodes, supra note 38, at 1366.
86. Tanford, supra note 62, at 496.
87. Nix v. Whiteside, 475 U.S. 157, 173 (1986).
88. Frankel, supra note 13, at 36.
89. Donald H. Zeigler, The Confusing Relationship Between Rules 608(b) and 609 of the Federal Rules of Evidence, 19 N.Y.L. Sch. J. Hum. Rts. 157, 164 (2003) (noting that a lawyer should not be allowed to ask about prior bad acts unless he has evidence "sufficient to make a prima facie case that the bad act actually happened");
90. see also Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135, 145 (1989) (finding that Rule 608(b)'s good faith standard "lacks uniform application and can have a threshold so low as to be nonexistent");
91. Rice, supra note 3, at 548-49, 551-52 (arguing that a lawyer should not be able to even ask about bad acts unless he has admissible evidence of the witness's commission of those bad acts).
92. Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717, 727-28 (1987).
93. Liisa Renée Salmi, Don't Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135, 154-55 (1999).
94. But see Nassau County (N. Y.) Bar Ass'n, Op. 94-6 (1994) (holding that an attorney may advise the client of applicable laws before hearing the client's version of the facts; to mandate otherwise would "in effect be to legislate mistrust of the client's honesty").
95. Tanford, supra note 62, at 536.
96. Id. at 534-37;
97. see also Robert Traver, Anatomy of a Murder 44-49 (1958).
98. Traver, supra note 76, at 30.
99. Id. at 30-33.
100. Id. at 35, 44-49.
101. Id. at 46.
102. Id. at 47.
103. Ellmann, supra note 73, at 741.
104. Monroe H. Freedman, Client Confidences and Client Perjury: Some Unanswered Questions, 136 U. Pa. L. Rev. 1939, 1948 (1988).
105. Id. at 1947-48 (internal quotation marks omitted).
106. See State v. McDowell, 681 N.W.2d 500, 513 (Wis. 2004) (stating that where a defendant intends to commit perjury, his attorney can often dissuade him "on pragmatic grounds" by explaining the "'evidentiary weakness of the false account'" and the "'likely consequences that, obviously, the defendant does not desire'"
107. (quoting State v. McDowell, 669 N.W.2d 204, 224 (Wis. Ct. App. 2003))).
108. Hazard, supra note 20, at 1050.
109. Fed. R. Evid. 404(b);
110. see also People v. Molineux, 61 N.E. 286, 294-304 (N.Y. 1901).
111. For example, in United States v. Castillo, after a drug defendant testified on direct examination that he "would not have smuggled drugs 'for a million dollars'" and that he "never used drugs and would not touch them," the court allowed prosecutors to impeach the defendant "by contradiction" with extrinsic evidence of a prior arrest for cocaine possession. 181 F.3d 1129, 1132-33 (9th Cir. 1999);
112. see also United States v. Paulsen, 645 F.2d 13, 14-15 (8th Cir. 1981) (ruling that after the defendant stated on direct examination that he had never been involved with drugs except for personal use, the prosecutor was entitled to impeach him via contradiction with previous drug transactions);
113. United States v. Benedetto, 571 F.2d 1246, 1249-50 (2d Cir. 1978) (ruling that after the defendant testified on direct examination that he had never accepted bribes from anyone, Rule 607 allowed a prosecution witness to testify about how he had repeatedly bribed the defendant in the past).
114. Simon, supra note 16, at 1727-28.
115. Id. at 1725.
116. See Subin, supra note 43, at 149.
117. Id. at 149-50.
118. United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir. 1975).
119. This maxim is sometimes attributed to H.E. Palmer.
120. See Shockley v. State, 565 A.2d 1373, 1378 (Del. 1989)
121. (discussing Nix v. Whiteside, 475 U.S. 157 (1986)).
122. Whiteside, 475 U.S. at 174-76.
123. Id. at 188-89 (Blackmun, J., concurring).
124. Id. (citations omitted).
125. Model Rules of Prof '1 Conduct R. 3.3(b) (2006).
126. Id. cmt. 10.
127. Whiteside, 475 U.S. at 169.
128. See Gillers, supra note 12, at 830-31 ("If the lawyer does know of intended perjury, the lawyer will often be able to discourage the client from asking to testify.");
129. Hazard, supra note 20, at 1049-50.
130. See ABA Comm. on Ethics and Prof'1 Responsibility, Formal Op. 87-353 (1987) ("Ordinarily, the lawyer can reasonably believe that such advice [against committing perjury] will dissuade the client from giving false testimony and, therefore, may examine the client in the normal manner." (emphasis omitted)).
131. See Thornton v. United States, 357 A.2d 429, 432 (D.C. 1976) (involving an attorney who attempted a noisy withdrawal by telling the court that he believed his client planned to lie because his client dramatically altered his story on the eve of trial);
132. cf. United States v. Henkel, 799 F.2d 369, 370 (7th Cir. 1986) (involving an attorney who tried to withdraw by stating that he could not '"professionally. . . proceed'");
133. People v. Ramos, 708 P.2d 1347, 1349 (Colo. 1985) (involving an attorney who sought to withdraw by telling the judge that his relationship with the defendant had "deteriorated" without disclosing his suspicion that the defendant would commit perjury).
134. Henkel, 799 F.2d at 370 (citing Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978)).
135. Model Rules of Prof'1 Conduct R. 3.3(b) cmt. 10 (2006).
136. Robert C. Horgan, Note, Making Black and White out of Gray: An Attorney's Duty to Investigate Suspected Client Fraud, 29 New Eng. L. Rev. 795, 849-50 (1995).
137. U.S. Sentencing Guidelines Manual § 3C1.1 (2006);
138. see also United States v. Grayson, 438 U.S. 41, 55 (1978) (Stewart, J., dissenting).
139. Frankel, supra note 13, at 40-41
140. (citing Carol T. Rieger, Client Perjury: A Proposed Resolution of the Constitutional and Ethical Issues, 70 Minn. L. Rev. 121, 149 (1985)).
141. People v. Schultheis, 638 P.2d 8,14 (Colo. 1981).
142. Id. at 13.
143. See People v. Ramos, 708 P.2d 1347, 1352 (Colo. 1985). In Ramos, a defendant complained that the trial judge should have recused himself because the defendant's attorney had telegraphed the defendant's anticipated perjury via a "Schultheis motion."
144. Id. at 1349. The court rejected this argument, holding that the trial judge had assumed that the defendant would offer "fabricated testimony" solely for the purpose of deciding the motion to withdraw.
145. Id. at 1352. I find it hard to believe that anyone can compartmentalize his thinking in this manner.
146. See People v. DePallo, 754 N.E.2d 751, 754 (N.Y. 2001).
147. Donald Liskov, Criminal Defendant Perjury: A Lawyer's Choice Between Ethics, the Constitution, and the Truth, 28 New Eng. L. Rev. 881, 888 (1994). George Rutherglen has proposed that when an attorney withdraws because of anticipated perjury, he should tell his successor about the defendant's plans.
148. See George Rutherglen, Dilemmas and Disclosures: A Comment on Client Perjury, 19 Am. J. Crim. L. 267, 269-78 (1992). This frustrates the client's plan, but it still does not solve the problem. It just transfers it.
149. See, e.g., People v. Gadson, 24 Cal. Rptr. 2d 219, 224 n.5 (Ct. App. 1993) (noting that withdrawal does "not necessarily resolve the problem").
150. Norman Lefstein, Client Perjury in Criminal Cases: Still in Search of an Answer, 1 Geo. J. Legal Ethics 521, 550-51 (1988).
151. Id. at 546.
152. Model Rules of Prof'1 Conduct R. 3.3 cmt. 6 (2006).
153. See, e.g., Godson, 24 Cal. Rptr. 2d at 224 (approving the narrative approach as a way to reconcile a defendant's right to testify and a lawyer's ethical obligations);
154. see also United States v. Henkel, 799 F.2d 369, 370 (7th Cir. 1986) (denying withdrawal when an attorney moved to withdraw right before the defendant was set to testify, but offering the defendant "an opportunity to testify without an attorney to guide him");
155. Commonwealth v. Mitchell, No. Crim. A. 9673CR0312, 2000 WL 33119695, at *18 (Mass. Super. Ct. Dec. 18, 2000) (rejecting defense counsel's motion to withdraw and permitting the defendant to testify in narrative form).
156. See, e.g., Godson, 24 Cal. Rptr. 2d at 223 (involving an attorney who did not argue the defendant's bogus alibi defense during summation; instead, defense counsel just attacked the state's case);
157. see also Thornton v. United States, 357 A.2d 429, 437 (D.C. 1976) (involving an attorney who "avoid[ed]" talking about the defendant's perjured testimony during summation);
158. Mitchell, 2000 WL 33119695, at *18 ("[T]he lawyer shall not argue the probative value of the false testimony in closing argument or in any other proceedings, including appeals.").
159. Gillers, supra note 12, at 830.
160. See Horgan, supra note 107, at 846-47.
161. Jeremy M. Miller, Client Perjury: An Ever Present, Multidimensional Problem, 106 Com. L.J. 349, 371 (2001).
162. Mitchell, 2000 WL 33119695, at *18.
163. Id.
164. Id. at *26.
165. See Model Rules of Prof 1 Conduct R. 3.3 cmt. 10 (2006).
166. See Smiley, supra note 36, at 675 (emphasis omitted).
167. ABA Comm. on Ethics and Prof 1 Responsibility, Formal Op. 87-353 (1987); .
168. see, e.g., In re Ellis, 130 P.2d 564, 565 (Kan. 1942) (holding that the failure to reveal a client's perjury merited reprimand).
169. Comm. on Prof'1 Ethics v. Crary, 245 N.W.2d 298, 306 (Iowa 1976) (faulting attorney for allowing client to commit perjury during deposition).
170. Id.
171. Monroe H. Freedman, Disclosing the Truth About Client Perjury (Hofstra Univ. Sch. of Law, Legal Studies Research Paper Series, Research Paper No. 07-10, 2007), available at http://ssrn.com/abstract=979654.
172. Freedman, supra note 83, at 1948.
173. Id. at 1947.
174. Id. at 1947-48.
175. See Standards for Criminal Justice: Prosecution Function and Defense Function Standard 4-3.2 cmt. (3d ed. 1993).
176. Gillers, supra note 12, at 832.
177. N. Y. Code of Prof 1 Resp. DR 7-102(B)(1) (2007).
178. See Nassau County (N. Y.) Bar Ass'n Comm. on Prof'1 Ethics, Op. No. 98-1 (1998) (holding that an attorney must disclose client information to the court only if it would be material to the resolution of a disputed issue in the litigation, and then only if the information is not a confidence or secret). In People v. DePallo, 754 N.E.2d 751, 753 (N.Y. 2001), the New York Court of Appeals narrowed - but did not invalidate - the "confidences" exception to an attorney's duty to reveal client perjury under Disciplinary Rule 7-102(B)(1)- The court ruled that the "confidences" exception does not encompass a client's stated intention to commit perjury or any other future crime; nor does it extend to matters that the client has already revealed to the court.
179. Id. at 753-54. DePallo demands disclosure of planned perjury about a central issue; it does not apply to accomplished perjury concerning collateral matters.
180. See Freedman, supra note 83, at 1940-46.
181. Model Rules of Prof'1 Conduct R. 1.0(f) (2006).
182. Id.
183. See Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989).
184. Commonwealth v. Mitchell, No. Crim. A. 9673CR0312, 2000 WL 33119695, at *20 (Mass. Super. Ct. Dec. 18, 2000);
185. see also United States v. Long, 857 F.2d 436, 444 (8th Cir. 1988);
186. United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977).
187. State v. Hischke, 639 N.W.2d 6, 10 (Iowa 2002).
188. People v. Calhoun, 815 N.E.2d 492, 499-500 (Ill. App. Ct. 2004);
189. see also People v. Bartee, 566 N.E.2d 855, 857 (Ill. App. Ct. 1991).
190. People v. Schultheis, 638 P.2d 8, 11 (Colo. 1981);
191. see also State v. DeGuzman, 701 P.2d 1287, 1291 (Haw. 1985).
192. State v. McDowell, 681 N.W.2d 500, 512 (Wis. 2004).
193. Id. (internal quotation marks omitted).
194. Bartee, 566 N.E.2d at 857.
195. Calhoun, 815 N.E.2d at 500.
196. Id.
197. J. Vincent Aprile II, Client Perjury: When Do You Know the Client Is Lying?, 19 Crim. Just. 14, 18 (2004).
198. Id.
199. Id.
200. Id.
201. (citing State v. McDowell, 681 N.W.2d 500, 511 (Wis. 2004)).
202. McDowell, 681 N.W.2d at 513.
203. Aprile, supra note 153, at 18;
204. see also McDowell, 681 N.W.2d at 513.
205. Nix v. Whiteside, 475 U.S. 157, 189 (1986) (Blackmun, J., concurring) (citation omitted).
206. United States v. Long, 857 F.2d 436, 445 (8th Cir. 1988).
207. Id.
208. Tanford aptly describes selective ignorance. He writes, Some commentators have actually come to the conclusion that, if an attorney believes an investigation would show that a client's proposed testimony was perjurious, the attorney should not conduct the investigation. In that way the attorney will be able later to deny actual knowledge of the falsity of the evidence and may ethically present it, all of which is justified as zealous loyalty to the client. Tanford, supra note 62, at 504.
209. State v. Hensley, 661 P.2d 527, 530 (Okla. 1983);
210. see also United States v. Wallach, 935 F.2d 445, 457 (2d Cir. 1991) (faulting prosecutors for "consciously avoid[ing] recognizing the obvious" fact that their witness committed perjury).
211. Hensley, 661 P.2d at 530.
212. Id.
213. Standards for Criminal Justice: Prosecution Function and Defense Function Standard 4-3.2 cmt. (1993).
214. Frankel, supra note 13, at 32.
215. Tanford, supra note 62, at 504-05.
216. United States v. Wade, 388 U.S. 218, 258 (1967) (White, J., dissenting in part and concurring in part).
217. Gerald L. Shargel & Marc Fernich, Federal Rules of Evidence 608(b): A Modest Amendment Proposal, N.Y. L.J., Mar. 21, 2006, at 4.
218. Id. (internal quotation marks omitted).
219. Richard E. Redding, Socialization by the Legal System: The Scientific Validity of a Lacanian Socio-legal Psychoanalysis, 75 Or. L. Rev. 781, 800-01 (1996).
220. Id.
221. Rafael Guzman, Impeaching the Credibility of a Witness: Issues, Rules and Suggestions, 1994 Ark. L. Notes 29, 32 (1994);
222. see also James Ethan McDaniel, Alabama Rule of Evidence 608(b): The Call for an Amendment to Prevent Abuse of the Protections Within the Rule, 57 Ala. L. Rev. 1105, 1121 (2006) (stating that asking about prior bad acts can be "especially damaging" (internal quotation marks omitted)).
223. See McDaniel, supra note 174, at 1121;
224. Guzman, supra note 174, at 32.
225. Kevin C. McMunigal & Calvin William Sharpe, Reforming Extrinsic Impeachment, 33 Conn. L. Rev. 363, 379 (2001).
226. Id. at 405-06.
227. Edward J. Imwinkelried, The Silence Speaks Volumes: A Brief Reflection on the Question of Whether It Is Necessary or Even Desirable to Fill the Seeming Gaps in Article VI of the Federal Rules of Evidence, Governing the Admissibility of Evidence Logically Relevant to the Witness's Credibility, 1998 U. Ill. L. Rev. 1013, 1033-34.
228. Id. at 1033 (quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989)).
229. Unlike Edward J. Imwinkelried, Abraham Ordover opposes unfettered discretion for trial judges. Ordover claims that even with the limited discretion that trial judges enjoy under Rule 608(b), they "have not been evenhanded in their treatment of prosecutors and defense counsel as cross-examiners." Ordover, supra note 72, at 189.
230. Rice, supra note 3, at 354.
231. Haw. R. Evid. 608(b).
232. Id. cmt.
233. Id.
234. See, e.g., Edward J. Imwinkelried, A Radical Approach to the Law of Impeachment: The Statutory Outer Limits, 22 Am. J. Trial Advoc. 1, 27 (1998).
235. See McCormick on Evidence § 41, at 89 (Edward W. Cleary ed., 3d ed. 1984).
236. Carter v. Hewitt, 617 F.2d 961, 969-70 (3d Cir. 1980).
237. Id. at 963.
238. Id. at 964.
239. Id. at 965.
240. Id. at 964-65.
241. Id. at 966.
242. Id. at 970.
243. Id. at 969-70.
244. Id. at 971.
245. Id. at 972 n.11.
246. United States v. Zandi, 769 F.2d 229 (4th Cir. 1985).
247. Id. at 236.
248. United States v. Simpson, 709 F.2d 903, 907-08 (5th Cir. 1983).
249. Id. at 907.
250. Id.
251. Id. at 910.
252. Id. at 908.
253. Rosario v. Kuhlman, 839 F.2d 918, 927 (2d Cir. 1988).
254. Old Chief v. United States, 519 U.S. 172, 186-87 (1997).
255. Twenty-five years ago, Harvard Law Professor Alan M. Dershowitz described former prosecutors who are defense lawyers in name only as "The Prosecutor in Defense Attorney's clothing." Alan M. Dershowitz, The Best Defense 400 (1982). As Professor Dershowitz wrote, "[T]heir hearts are not in defending guilty criminals. Nor is it their ambition to spend their lives on what they regard as the 'wrong side' of the law." Id.