Most people think of Rule 404 as the rule that keeps a defendant’s past out of trial. That’s true — but Rule 404 also does something else that matters just as much to a defense: it opens the door to attacking the credibility of the State’s own witnesses through a separate set of rules built specifically for that purpose.
The Rule 404 Witness Exception
Indiana Rule of Evidence 404 generally bars using someone’s character to prove they acted in character on a particular occasion. But Rule 404(a)(3) carves out a specific exception for witnesses: “Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.”
In other words, Rule 404 doesn’t itself tell you how to attack a witness’s credibility — it points you to three other rules that do the actual work. Understanding how those three rules function, and how they fit together, is what turns this exception into a real tool at trial.
Rule 607: Anyone Can Attack a Witness’s Credibility
Rule 607 is short and foundational: “Any party, including the party that called the witness, may attack the witness’s credibility.” For the defense, the practical point is simple — you don’t need a special reason or a special relationship to challenge how believable a State’s witness is. The moment a witness takes the stand, their credibility is fair game.
Rule 608: Character for Truthfulness
Rule 608 governs attacking (or supporting) a witness’s character specifically for truthfulness — as opposed to their character generally, or specific bad acts unrelated to honesty.
- Reputation or opinion evidence (608(a)). A witness’s credibility can be attacked through another witness’s testimony about their reputation for truthfulness, or through opinion testimony about their character for truthfulness. Evidence of truthful character only comes in after the witness’s truthfulness has already been attacked — you can’t bolster credibility that hasn’t been challenged yet.
- Specific instances of conduct (608(b)). This is the more limited piece. Except for a criminal conviction covered by Rule 609, extrinsic evidence (outside proof, like documents or other witnesses) generally cannot be used to prove specific instances of a witness’s conduct to attack their truthfulness. The rule does allow a court to permit inquiry into such conduct on cross-examination, but as a general matter you’re stuck with the witness’s own answer — you can’t call a separate witness or introduce paperwork just to prove a specific untruthful act happened.
The upshot: Rule 608 is about the witness’s honesty in the abstract sense, tested mostly on cross-examination, not through outside documentation — with one major exception, which is where Rule 609 comes in.
Rule 609: Impeachment by Prior Conviction
Rule 609 is the rule most directly relevant to using a witness’s criminal record against them, and it’s more specific — and more limited — than people often assume.
Not every conviction qualifies. Under Rule 609(a), evidence that a witness was convicted of a crime must be admitted for impeachment purposes only if the crime is:
- Murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or
- A crime involving dishonesty or false statement, including perjury.
A witness’s unrelated prior conviction — say, for a drug offense that doesn’t fall into either category — is generally not fair game under Rule 609, even though it might feel relevant to a jury deciding whether to believe that witness.
The 10-year rule. If more than 10 years have passed since the conviction or the witness’s release from confinement for it (whichever is later), the conviction isn’t automatically admissible anymore. Under Rule 609(b), it can still come in, but only if its probative value substantially outweighs its prejudicial effect, and the party wanting to use it gives the other side reasonable written notice in advance.
Pardons and rehabilitation. Rule 609(c) excludes convictions that have been pardoned, annulled, or subject to a certificate of rehabilitation based on a finding the person has been rehabilitated (so long as there’s no later qualifying conviction) — or that were the subject of a pardon or similar procedure based on a finding of innocence.
Juvenile adjudications. Under Rule 609(d), a juvenile adjudication can be used against a witness (other than the defendant) in a criminal case only if an adult conviction for the same offense would qualify under the rule, and admitting it is necessary to fairly determine guilt or innocence.
Pending appeals. A qualifying conviction is still admissible under Rule 609(e) even while an appeal is pending, and the fact of the pending appeal can also be introduced.
Why the Combination Matters for the Defense
These three rules work together, not separately. Rule 607 establishes that the defense has standing to challenge any State witness’s credibility — including cooperating witnesses, informants, and even the alleged victim. Rule 608 gives the defense a path to attack general truthfulness, primarily through cross-examination rather than outside proof. Rule 609 gives the defense (and the State) a narrow, rule-based path to bring in actual prior convictions — but only the specific kinds of convictions the rule identifies, and only within real limits on time and prejudice.
For a defense attorney, this means the work happens well before trial: pulling every State witness’s criminal history, sorting out which convictions actually qualify under Rule 609(a)’s specific list, checking the clock on the 10-year rule, and being ready to argue probative value versus prejudice when a conviction is older or borderline. A jailhouse informant with a qualifying prior conviction for a crime of dishonesty, for example, is exactly the kind of witness where Rule 609 can do real work.
The rule cuts both ways, too. If a defendant testifies, the same Rule 609 analysis applies to their own prior convictions — which is one of the central strategic questions in deciding whether a defendant should take the stand.
The Bottom Line
Rule 404 doesn’t hide the ball on witness credibility — it explicitly hands the job to Rules 607, 608, and 609. Knowing exactly what those rules allow, and where their limits are, is the difference between a credibility attack that lands and one that gets excluded before the jury ever hears it.
This post is for general information and does not constitute legal advice. If you have questions about a witness’s credibility or criminal history in your case, contact our office to discuss your specific situation.