Conviction through 608? 🤔

While the S.C. Rules of Evidence and Federal Rules of Evidence are very similar, there are some key differences in a few rules.

• 404(b) Prior Bad Acts: the S.C. rules have a limited list of ways that someone's prior bad acts may be allowed (e.g., motive, intent, plan, etc.). However, the federal rules do not have a limited list.

• 801 Prior Inconsistent Statement: the federal rules require any prior inconsistent statement to be sworn in order for it not to be hearsay. The S.C. rules do not require the prior inconsistent statement to be sworn.

• 608 Bias of Witness: Federal Rule 608 allows for impeachment of a witness by reputation and specific instances of conduct. However, it does not allow extrinsic evidence of specific instances of conduct (except for convictions under 609). This rule differs from its S.C. counterpart, because S.C. has an additional section to the rule which allows for evidence of bias, prejudice, or motive to misrepresent.

This leads us to State v. Fuller. In this court of appeals case, defendant was riding with the victim in the car, when he pulled a gun on her. He attempted to sexually assault her but she crashed the car in an effort to get away from him. The defense argued that the victim fabricated this story because she had been drinking and wanted to avoid a DUI. Furthermore, the victim had two previous convictions for DUI. The defense wanted to cross-examine the victim about her previous convictions. They argued that under 608 this evidence would show that she had a motive to misrepresent, probably because of the potential DUI enhancement penalty she could face. The trial court denied this request and did not allow the defense to cross-examine her about the prior convictions. (The prior convictions would not come in under 609 because DUI carries less than a year of imprisonment and it is not a crime of dishonesty).

The court of appeals agreed with the trial judge. They first explained the standard for impeachment evidence:

“[A]nything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness may be shown and considered in determining the credit to be accorded his testimony, and on cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.” State v. Fuller, No. 2016-000672, 2019 WL 98162, at *4 (S.C. Ct. App. Jan. 4, 2019)

The court then went through the testimony of the responding officer, who testified that he didn't believe the victim was under the influence, if he did think that, then he would have proceeded with an investigation, and there was no evidence of any pending DUI charges against the victim.

Based on these facts, the court held:

Here, there was no evidence suggesting either that the victim fabricated her account of the incident to gain sympathy from law enforcement or that law enforcement refrained from prosecuting her for DUI because it believed her accusations against Fuller. Therefore, we hold the victim's prior DUI convictions did not have a “legitimate tendency to throw light on [her] accuracy, truthfulness, and sincerity.” Id. at 5

While this case excluded the prior convictions, it goes to show that it is possible to have prior convictions admitted either through the standard 609 method or the additional method found in 608(c).