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Case 1:20-cr-00330-PAE Document 721 Filed 07/12/22 Page4of9 The Honorable Alison J. Nathan December 14, 2021 Page 4 (2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self- incrimination for testimony that relates only to the witness’s character for truthfulness. Fed. R. Evid. 608. Rule 608(b) permits inquiry, at the court’s discretion, into specific instances of a witness’s conduct that are “probative of truthfulness or untruthfulness.” Fed. R. Evid. 608(b). In turn, Rule 403 “circumscribes” the court’s discretion even further “by requiring the court to weigh the probative value of the evidence against the danger of unfair prejudice from it.” Ad- Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir. 1994) (citing Fed. R. Evid. 403). Where the specific instances of conduct are not probative of truthfulness or untruthfulness, the Court has no discretion to permit inquiry on cross- examination. Fed. R. Evid. 608(b). “Rule 608(b) is intended to be restrictive. ... The rule does not authorize inquiry on cross-examination into instances of conduct that do not actually indicate a lack of truthfulness.” United States v. Nelson, 365 F. Supp. 2d 381, 386 (S.D.N.Y. 2005) (quotation omitted). “Acts probative of untruthfulness under Rule 608(b) include such acts as forgery, perjury, and fraud.” Ad-Vantage, 37 F.3d at 1464 (citing 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence { 608[5] at 608-45 to 608-46 (1994)). By contrast, unethical conduct is not, as a general matter, probative of untruthfulness. /d. (“Anton’s borrowing from his clients, while ethically questionable, is likewise irrelevant to his truthfulness as an expert.”). Indeed, “[t]o infer untruthfulness from any unethical act ‘paves the way to the exception which will swallow the Rule.’” Jd. (quoting 3 Weinstein & Berger, § 608 [05] at 608-49 (1994)). DOJ-OGR-00011348