02/09 Evidence Question

Plaintiff, an employee of Contractor, was injured while using a table saw manufactured by Defendant and owned by Contractor. Plaintiff sued Defendant in federal court to recover damages for his injuries.

At trial, Defendant called Witness, another employee of Contractor. Neither Witness nor Contractor is a party to Plaintiff’s action against Defendant. On direct examination, Witness testified that he saw Plaintiff remove a safety guard from the table saw on the morning of the accident.

During cross-examination by Plaintiff’s Counsel, Witness testified as follows:

PLAINTIFF’S COUNSEL: At the time you applied for your job with Contractor, you had three years of previous construction experience, didn’t you?

WITNESS: Yes.

PLAINTIFF’S COUNSEL: Didn’t you lie about how much construction experience you had when you applied for the job with Contractor?

DEFENSE COUNSEL: Objection, inadmissible character evidence.

PLAINTIFF’S COUNSEL: We are impeaching this witness with a specific instance of untruthful conduct under Rule 608(b), Your Honor.

COURT: Overruled.

PLAINTIFF’S COUNSEL: I’ll repeat my question—didn’t you lie about how much construction experience you had?

WITNESS: No, I did not.

PLAINTIFF’S COUNSEL: Isn’t Plaintiff’s Exhibit 37 a genuine copy of your job application?

WITNESS: Yes, it is.

PLAINTIFF’S COUNSEL: Didn’t you lie on that application?

WITNESS: No.

PLAINTIFF’S COUNSEL: We offer Plaintiff’s Exhibit 37.

DEFENSE COUNSEL: Objection, inadmissible character evidence.

COURT: Approach the bench. (The following occurred outside the hearing of the jury.)

PLAINTIFF’S COUNSEL: Judge, this is a copy of Witness’s job application in which he represented that he had twelve years of construction experience when he actually had only three.

COURT: Sustained.

Plaintiff’s Counsel then asked Witness to review Plaintiff’s Exhibit 37 to refresh his recollection about whether he had lied. Witness did so and then testified: “I didn’t lie.”

Plaintiff’s Counsel thereafter re-offered Exhibit 37, claiming that it was admissible under Rule 612 to refresh Witness’s recollection. Defense Counsel objected, and the Court sustained the objection.

Later, Plaintiff’s Counsel called Contractor to testify. During direct examination, Plaintiff’s Counsel asked Contractor, “Did Witness tell you that he had twelve years of construction experience during his job interview?” Defense Counsel
objected that this was inadmissible character evidence, and the Court sustained the objection.

Did the Court err in:

1. Overruling Defense Counsel’s objection to cross-examination about an alleged lie by Witness? Explain.

2. Sustaining Defense Counsel’s objection to the introduction of Exhibit 37 as inadmissible character evidence? Explain.

3. Sustaining Defense Counsel’s objection to the introduction of Exhibit 37 to refresh the recollection of Witness? Explain.

4. Sustaining Defense Counsel’s objection to Contractor’s testimony? Explain.