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Gustafson v. State | 590 S.W.2d 853 (1979)

Under Federal Rule of Evidence 609, evidence of certain prior criminal convictions can be used to attack a witness’s credibility. But what about evidence of prior misconduct that didn’t result in conviction? In Gustafson versus State, we explore when Federal Rule of Evidence 608(b) allows the impeachment of a witness’s credibility using prior misconduct.

When Jack Gustafson was charged with burglary, attempted theft, and soliciting capital murder, he testified on his own behalf at trial. Despite objections by Gustafson’s counsel, the trial judge allowed the prosecution to ask Gustafson to confirm two instances of prior misconduct during cross-examination. Both questions alleged that Gustafson had previously knowingly possessed stolen property. In response to the second question, Gustafson asserted his Fifth Amendment privilege against self-incrimination. The trial judge, however, ordered Gustafson to answer.

The trial court subsequently convicted Gustafson. He appealed to the Arkansas Supreme Court, arguing, among other things, that the trial court erred by permitting the two prior-misconduct questions and by requiring Gustafson to answer such a question despite his assertion of the privilege against self-incrimination.

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