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Mitzell v. Glover3/20/2000
. Dr. Marne replied that it was. Only after Dr. Glover read the interrogatory did Dr. Marne concede the jury had found he had committed fraud.
The Mizells argue on appeal the court erred in admitting the content of the jury interrogatory because it did not form a part of the final judgment and was thus not appealable.() I disagree. Simply because the jury interrogatory was not reduced to a final judgment does not mean that the information was inadmissible. The trial court correctly ruled the content of the interrogatory was admissible pursuant to Rule 608(b) as it concerned Dr. Marne's character for truthfulness or untruthfulness.
Rule 608(b) provides that specific instances of a witness's conduct may be inquired into on cross-examination at the discretion of the judge for the purpose of attacking or supporting the witness's credibility when it concerns the witness's character for truthfulness or untruthfulness.() These instances, however, may not be proved by extrinsic evidence.()
The Mizells contend that the content of the interrogatory amounted to extrinsic evidence. I disagree. "Evidence is 'extrinsic' if offered through documents or other witnesses, rather than through cross-examination of the witness himself or herself."() Here, Dr. Glover produced no documents, such as the jury interrogatory itself, and no witnesses to impeach Dr. Marne's testimony. Instead, Dr. Glover introduced the contents of the jury interrogatory through cross-examination - the method permitted under the rule.
The Mizells' narrow approach to the rule would foreclose an examiner from questioning a witness on any specific act of misconduct that did not lead to a judgment against a party. The focus of Rule 608(b), however, is not on the type of evidence that is admitted, i.e. a civil judgment or a criminal conviction; instead, the focus of the rule is on the purpose for which the evidence is introduced. Rule 608(b) permits inquiry into acts of misconduct that indicate a lack of truthfulness, such as fraud.()
Federal courts, construing the virtually identical Rule 608(b) of the Federal Rules of Evidence have held judicial findings regarding a witness's untruthfulness to be probative of the witness's veracity even when these findings are not reduced to judgment. In United States v. Terry,() the Second Circuit found no impropriety in the prosecutor's cross-examination of a voice expert witness regarding a district judge's criticism of the expert's testimony in other cases as being "unworthy of belief."() The same court also permitted cross-examination into an immigration judge's finding that an appellant's testimony was not credible because of his political activities.()
In the case at bar, the evidence of fraud was offered to prove Dr. Marne's character for untruthfulness. I find no error in permitting this line of questioning as the witness's character for untruthfulness was an essential factor in the jury's determination of the weight to afford his testimony.
II. Article of Expert Witness Dr. Buckholz
The Mizells contend the trial court erred in excluding an article on RSD written by Glover's expert witness, Dr. John Buckholz, because it was his own prior statement and conflicted with his testimony. We disagree.
Dr. Buckholz is a podiatric physician and surgeon practicing in Michigan who was retained by Dr. Glover to review the records in this case. On cross-examination, the Mizells sought to introduce a chapter written by Dr. Buckholz that appeared in a podiatric textbook. The trial court ruled the document inadmissible, but allowed counsel to cross-examine Dr. Buckholz extensively about the chapter.
Rule 8
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