Respondent and two cohorts were indicted for bank robbery. The
cohorts pleaded guilty but respondent went to trial. One of the
cohorts, Ehle, agreed to testify against respondent. Respondent
informed the District Court that he would seek to counter Ehle's
testimony with that of one Mills, who would testify that, after the
robbery, Ehle had admitted to Mills that Ehle intended to implicate
respondent falsely, in order to receive favorable treatment from
the Government. The prosecutor in turn disclosed that he intended
to discredit Mills' testimony by calling Ehle back to the stand to
testify that respondent, Mills, and Ehle were all members of a
secret prison gang that was sworn to perjury and self-protection on
each member's behalf. When, upon being cross-examined by the
prosecutor, Mills denied knowledge of the prison gang, the
prosecutor, as permitted by the District Court, recalled Ehle, who
testified that he, respondent, and Mills were members of the prison
gang and described the gang and its tenets. The jury convicted
respondent. The Court of Appeals reversed, holding that Ehle's
rebuttal testimony was admitted not just to show that respondent's
and Mills' membership in the prison gang might cause Mills to color
his testimony, but also to show that, because Mills belonged to the
gang, he must be lying on the stand. The court further held that
Ehle's testimony implicated respondent as a member of the gang, but
that since respondent did not take the stand, the testimony could
not have been offered to impeach him and prejudiced him "by mere
The evidence showing Mills' and respondent's
membership in the prison gang was sufficiently probative of Mills'
possible bias towards respondent to warrant its admission into
evidence. Pp. 469 U. S.
(a) While the Federal Rules of Evidence do not by their terms
deal with impeachment for "bias," it is clear that the Rules do
contemplate such impeachment. It is permissible to impeach a
witness by showing his bias under the Rules just as it was
permissible to do so before their adoption. Here, Ehle's testimony
about the prison gang certainly made the existence of Mills' bias
towards respondent more probable, and it was thus relevant to
support that inference. A witness' and a party's common membership
in an organization, even without proof that the witness or party
has personally adopted its tenets, is certainly probative of
Page 469 U. S. 46
bias. Scales v. United States, 367 U.
, and Brandenburg v. Ohio, 395 U.
, distinguished. Pp. 469 U. S.
(b) The District Court did not abuse its discretion under
Federal Rule of Evidence 403 in admitting Ehle's full description
of the prison gang and its tenets, since the type
organization in which a witness and a party share membership may be
relevant to show bias. The attributes of the prison gang bore
directly not only on the fact
of bias but also on the
of Mills' bias. Pp.
469 U. S.
(c) It was not error under Federal Rule of Evidence 608(b) --
which allows a cross-examiner to impeach a witness by asking him
about specific instances of past conduct, other than crimes covered
by Rule 609, which are probative of his veracity -- to
cross-examine Mills about the prison gang to show, in addition to
Mills' bias, his membership in the gang's past conduct bearing on
his veracity. Nor was it error under Rule 608(b) to admit Ehle's
rebuttal testimony concerning the gang. The proffered testimony
with respect to Mills' membership in the gang sufficed to show
potential bias in respondent's favor, and such extrinsic evidence
is admissible to show bias. It is true that, because of the gang's
tenets that the testimony described, the testimony might also have
impeached Mills' veracity directly. But there is no rule of
evidence that provides that testimony admissible for one purpose
and inadmissible for another purpose is thereby rendered
inadmissible. Pp. 469 U. S.
707 F.2d 1013, reversed.
REHNQUIST J., delivered the opinion for a unanimous Court.
JUSTICE REHNQUIST delivered the opinion of the Court.
A divided panel of the Court of Appeals for the Ninth Circuit
reversed respondent's conviction for bank robbery. [Footnote 1
] The Court of Appeals held that
the District Court improperly admitted testimony which impeached
one of respondent's
Page 469 U. S. 47
witnesses. We hold that the District Court did not err, and we
Respondent John Abel and two cohorts were indicted for robbing a
savings and loan in Bellflower, Cal., in violation of 18 U.S.C. §§
2113(a) and (d). The cohorts elected to plead guilty, but
respondent went to trial. One of the cohorts, Kurt Ehle, agreed to
testify against respondent and identify him as a participant in the
Respondent informed the District Court at a pretrial conference
that he would seek to counter Ehle's testimony with that of Robert
Mills. Mills was not a participant in the robbery but was friendly
with respondent and with Ehle, and had spent time with both in
prison. Mills planned to testify that after the robbery Ehle had
admitted to Mills that Ehle intended to implicate respondent
falsely, in order to receive favorable treatment from the
Government. The prosecutor in turn disclosed that he intended to
discredit Mills' testimony by calling Ehle back to the stand and
eliciting from Ehle the fact that respondent, Mills, and Ehle were
all members of the "Aryan Brotherhood," a secret prison gang that
required its members always to deny the existence of the
organization and to commit perjury, theft, and murder on each
Defense counsel objected to Ehle's proffered rebuttal testimony
as too prejudicial to respondent. After a lengthy discussion in
chambers the District Court decided to permit the prosecutor to
cross-examine Mills about the gang, and if Mills denied knowledge
of the gang, to introduce Ehle's rebuttal testimony concerning the
tenets of the gang and Mills' and respondent's membership in it.
The District Court held that the probative value of Ehle's rebuttal
testimony outweighed its prejudicial effect, but that respondent
might be entitled to a limiting instruction if his counsel would
submit one to the court.
At trial Ehle implicated respondent as a participant in the
robbery. Mills, called by respondent, testified that Ehle
Page 469 U. S. 48
told him in prison that Ehle planned to implicate respondent
falsely. When the prosecutor sought to cross-examine Mills
concerning membership in the prison gang, the District Court
conferred again with counsel outside of the jury's presence, and
ordered the prosecutor not to use the term "Aryan Brotherhood"
because it was unduly prejudicial. Accordingly, the prosecutor
asked Mills if he and respondent were members of a "secret type of
prison organization" which had a creed requiring members to deny
its existence and lie for each other. When Mills denied knowledge
of such an organization the prosecutor recalled Ehle.
Ehle testified that respondent, Mills, and he were indeed
members of a secret prison organization whose tenets required its
members to deny its existence and "lie, cheat, steal [and] kill" to
protect each other. The District Court sustained a defense
objection to a question concerning the punishment for violating the
organization's rules. Ehle then further described the organization
and testified that "in view of the fact of how close Abel and Mills
were" it would have been "suicide" for Ehle to have told Mills what
Mills attributed to him. Respondent's counsel did not request a
limiting instruction and none was given.
The jury convicted respondent. On his appeal a divided panel of
the Court of Appeals reversed. 707 F.2d 1013 (1983). The Court of
Appeals held that Ehle's rebuttal testimony was admitted not just
to show that respondent's and Mills' membership in the same group
might cause Mills to color his testimony; the court held that the
contested evidence was also admitted to show that, because Mills
belonged to a perjurious organization, he must be lying on the
stand. This suggestion of perjury, based upon a group tenet, was
impermissible. The court reasoned:
"It is settled law that the government may not convict an
individual merely for belonging to an organization that advocates
illegal activity. Scales v. United States, 367 U. S.
, 367 U. S. 219
-24 . . .;
Brandenb\[u\]rg v. Ohio,
Page 469 U. S. 49
U.S. 444. . . . Rather, the government must show that the
individual knows of and personally accepts the tenets of the
organization. Neither should the government be allowed to impeach
on the grounds of mere membership, since membership, without more,
has no probative value. It establishes nothing about the
individual's own actions, beliefs, or veracity."
at 1016 (citations omitted). The court concluded
that Ehle's testimony implicated respondent as a member of the
gang; but since respondent did not take the stand, the testimony
could not have been offered to impeach him and it prejudiced him
"by mere association." Id.
We hold that the evidence showing Mills' and respondent's
membership in the prison gang was sufficiently probative of Mills'
possible bias towards respondent to warrant its admission into
evidence. Thus it was within the District Court's discretion to
admit Ehle's testimony, and the Court of Appeals was wrong in
Both parties correctly assume, as did the District Court and the
Court of Appeals, that the question is governed by the Federal
Rules of Evidence. But the Rules do not by their terms deal with
impeachment for "bias," although they do expressly treat
impeachment by character evidence and conduct, Rule 608, by
evidence of conviction of a crime, Rule 609, and by showing of
religious beliefs or opinion, Rule 610. Neither party has suggested
what significance we should attribute to this fact. Although we are
nominally the promulgators of the Rules, and should in theory need
only to consult our collective memories to analyze the situation
properly, we are in truth merely a conduit when we deal with an
undertaking as substantial as the preparation of the Federal Rules
of Evidence. In the case of these Rules, too, it must be remembered
that Congress extensively reviewed our submission, and considerably
revised it. See
28 U.S.C. § 2076; 4 J. Bailey III & O.
Trelles II, Federal Rules of
Page 469 U. S. 50
Evidence: Legislative Histories and Related Documents
Before the present Rules were promulgated, the admissibility of
evidence in the federal courts was governed in part by statutes or
Rules, and in part by case law. See, e.g.,
Civ.Proc. 43(a) (prior to 1975 amendment); Fed.Rule Crim.Proc. 26
(prior to 1975 amendment); Palmer v. Hoffman, 318 U.
(1943); Funk v. United States,
290 U. S. 371
(1933); Shepard v. United States, 290 U. S.
(1933). This Court had held in Alford v. United
States, 282 U. S. 687
(1931), that a trial court must allow some cross-examination of a
witness to show bias. This holding was in accord with the
overwhelming weight of authority in the state courts as reflected
in Wigmore's classic treatise on the law of evidence. See
at 282 U. S. 691
3 J. Wigmore, Evidence § 1368 (2d ed.1923); see
also District of Columbia v. Clawans, 300 U.
, 300 U. S.
-633 (1937). Our decision in Davis v.
Alaska, 415 U. S. 308
(1974), holds that the Confrontation Clause of the Sixth Amendment
requires a defendant to have some opportunity to show bias on the
part of a prosecution witness.
With this state of unanimity confronting the drafters of the
Federal Rules of Evidence, we think it unlikely that they intended
to scuttle entirely the evidentiary availability of
cross-examination for bias. One commentator, recognizing the
omission of any express treatment of impeachment for bias,
prejudice, or corruption, observes that the Rules "clearly
contemplate the use of the above-mentioned grounds of impeachment."
E. Cleary, McCormick on Evidence § 40, p. 85 (3d ed.1984). Other
commentators, without mentioning the omission, treat bias as a
permissible and established basis of impeachment under the Rules. 3
D. Louisell & C. Mueller, Federal Evidence § 341, p. 470
(1979); 3 J. Weinstein & M. Berger, Weinstein's Evidence
We think this conclusion is obviously correct. Rule 401 defines
as "relevant evidence" evidence having any tendency
Page 469 U. S. 51
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. Rule 402 provides that all relevant
evidence is admissible, except as otherwise provided by the United
States Constitution, by Act of Congress, or by applicable rule. A
successful showing of bias on the part of a witness would have a
tendency to make the facts to which he testified less probable in
the eyes of the jury than it would be without such testimony.
The correctness of the conclusion that the Rules contemplate
impeachment by showing of bias is confirmed by the references to
bias in the Advisory Committee Notes to Rules 608 and 610, and by
the provisions allowing any party to attack credibility in Rule
607, and allowing cross-examination on "matters affecting the
credibility of the witness" in Rule 611(b). The Courts of Appeals
have upheld use of extrinsic evidence to show bias both before and
after the adoption of the Federal Rules of Evidence. See, e.g.,
United States v. James,
609 F.2d 36, 46 (CA2 1979), cert.
445 U.S. 905 (1980); United States v.
582 F.2d 1102, 1106 (CA7 1978); United States
547 F.2d 438, 445-446 (CA8), cert. denied sub
nom. Hendrix v. United States,
430 U.S. 937 (1977);
United States v. Harvey,
547 F.2d 720, 722 (CA2 1976);
United States v. Robinson,
174 U.S.App.D.C. 224, 227-228,
530 F.2d 1076, 1079-1080 (1976); United States v.
456 F.2d 526, 530 (CA2), cert. denied,
U.S. 863 (1972).
We think the lesson to be drawn from all of this is that it is
permissible to impeach a witness by showing his bias under the
Federal Rules of Evidence just as it was permissible to do so
before their adoption. In this connection, the comment of the
Reporter for the Advisory Committee which drafted the Rules is
"In principle, under the Federal Rules no common law of evidence
remains. 'All relevant evidence is admissible, except as otherwise
provided. . . .' In reality, of course,
Page 469 U. S. 52
the body of common law knowledge continues to exist, though in
the somewhat altered form of a source of guidance in the exercise
of delegated powers."
Cleary, Preliminary Notes on Reading the Rules of Evidence, 57
Neb.L.Rev. 908, 915 (1978) (footnote omitted).
Ehle's testimony about the prison gang certainly made the
existence of Mills' bias towards respondent more probable. Thus it
was relevant to support that inference. Bias is a term used in the
"common law of evidence" to describe the relationship between a
party and a witness which might lead the witness to slant,
unconsciously or otherwise, his testimony in favor of or against a
party. Bias may be induced by a witness' like, dislike, or fear of
a party, or by the witness' self-interest. Proof of bias is almost
always relevant because the jury, as finder of fact and weigher of
credibility, has historically been entitled to assess all evidence
which might bear on the accuracy and truth of a witness' testimony.
The "common law of evidence" allowed the showing of bias by
extrinsic evidence, while requiring the cross-examiner to "take the
answer of the witness" with respect to less favored forms of
impeachment. See generally
McCormick on Evidence,
§ 40, at 89; Hale, Bias as Affecting Credibility, 1
Hastings L.J. 1 (1949).
Mills' and respondent's membership in the Aryan Brotherhood
supported the inference that Mills' testimony was slanted or
perhaps fabricated in respondent's favor. A witness' and a party's
common membership in an organization, even without proof that the
witness or party has personally adopted its tenets, is certainly
probative of bias. We do not read our holdings in Scales v.
United States, 367 U. S. 203
(1961), and Brandenburg v. Ohio, 395 U.
(1969), to require a different conclusion. Those
cases dealt with the constitutional requirements for convicting
persons under the Smith Act and state syndicalism laws for
belonging to organizations which espoused illegal aims and engaged
Page 469 U. S. 53
conduct. Mills' and respondent's membership in the Aryan
Brotherhood was not offered to convict either of a crime, but to
impeach Mills' testimony. Mills was subject to no sanction other
than that he might be disbelieved. Under these circumstances there
is no requirement that the witness must be shown to have subscribed
to all the tenets of the organization, either casually or in a
manner sufficient to permit him to be convicted under laws such as
those involved in Scales
] For purposes of
the law of evidence the jury may be permitted to draw an inference
of subscription to the tenets of the organization from membership
alone, even though such an inference would not be sufficient to
convict beyond a reasonable doubt in a criminal prosecution under
the Smith Act.
Respondent argues that even if the evidence of membership in the
prison gang were relevant to show bias, the District Court erred in
permitting a full description of the gang and its odious tenets.
Respondent contends that the District Court abused its discretion
under Federal Rule of Evidence 403, [Footnote 3
] because the prejudicial effect of the
contested evidence outweighed its probative value. In other words,
testimony about the gang inflamed the jury against respondent, and
the chance that he would be convicted by his mere association with
the organization outweighed any probative value the testimony may
have had on Mills' bias.
Page 469 U. S. 54
Respondent specifically contends that the District Court should
not have permitted Ehle's precise description of the gang as a
lying and murderous group. Respondent suggests that the District
Court should have cut off the testimony after the prosecutor had
elicited that Mills knew respondent and both may have belonged to
an organization together. This argument ignores the fact that the
of organization in which a witness and a party share
membership may be relevant to show bias. If the organization is a
loosely knit group having nothing to do with the subject matter of
the litigation, the inference of bias arising from common
membership may be small or nonexistent. If the prosecutor had
elicited that both respondent and Mills belonged to the Book of the
Month Club, the jury probably would not have inferred bias even if
the District Court had admitted the testimony. The attributes of
the Aryan Brotherhood -- a secret prison sect sworn to perjury and
self-protection -- bore directly not only on the fact
bias but also on the source
Mills' bias. The tenets of this group showed that Mills had a
powerful motive to slant his testimony towards respondent, or even
commit perjury outright.
A district court is accorded a wide discretion in determining
the admissibility of evidence under the Federal Rules. Assessing
the probative value of common membership in any particular group,
and weighing any factors counseling against admissibility is a
matter first for the district court's sound judgment under Rules
401 and 403 and ultimately, if the evidence is admitted, for the
trier of fact.
Before admitting Ehle's rebuttal testimony, the District Court
gave heed to the extensive arguments of counsel, both in chambers
and at the bench. In an attempt to avoid undue prejudice to
respondent the court ordered that the name "Aryan Brotherhood" not
be used. The court also offered to give a limiting instruction
concerning the testimony, and it sustained defense objections to
the prosecutor's questions concerning the punishment meted out to
unfaithful members. These precautions did not prevent all
prejudice to respondent
Page 469 U. S. 55
from Ehle's testimony, but they did, in our opinion, ensure that
the admission of this highly probative evidence did not
prejudice respondent. We hold there was no abuse of
discretion under Rule 403 in admitting Ehle's testimony as to
membership and tenets.
Respondent makes an additional argument based on Rule 608(b).
That Rule allows a cross-examiner to impeach a witness by asking
him about specific instances of past conduct, other than crimes
covered by Rule 609, which are probative of his veracity or
"character for truthfulness or untruthfulness." [Footnote 4
] The Rule limits the inquiry to
cross-examination of the witness, however, and prohibits the
cross-examiner from introducing extrinsic evidence of the witness'
Respondent claims that the prosecutor cross-examined Mills about
the gang not to show bias but to offer Mills' membership in the
gang as past conduct bearing on his veracity. This was error under
Rule 608(b), respondent contends, because the mere fact of Mills'
membership, without more, was not sufficiently probative of Mills'
character for truthfulness. Respondent cites a second error under
the same Rule, contending that Ehle's rebuttal testimony concerning
the gang was extrinsic evidence offered to impugn Mills' veracity,
and extrinsic evidence is barred by Rule 608(b).
The Court of Appeals appears to have accepted respondent's
argument to this effect, at least in part. It said:
"Ehle's testimony was not simply a matter of showing that Abel's
and Mills' membership in the same organization might 'cause
[Mills], consciously or otherwise, to color his testimony.' . . .
Rather it was to show as well
Page 469 U. S. 56
that, because Mills and Abel were members of a gang whose
members 'will lie to protect the members,' Mills must be lying on
707 F.2d at 1016.
It seems clear to us that the proffered testimony with respect
to Mills' membership in the Aryan Brotherhood sufficed to show
potential bias in favor of respondent; because of the tenets of the
organization described, it might also impeach his veracity
directly. But there is no rule of evidence which provides that
testimony admissible for one purpose and inadmissible for another
purpose is thereby rendered inadmissible; quite the contrary is the
case. It would be a strange rule of law which held that relevant,
competent evidence which tended to show bias on the part of a
witness was nonetheless inadmissible because it also tended to show
that the witness was a liar.
We intimate no view as to whether the evidence of Mills'
membership in an organization having the tenets ascribed to the
Aryan Brotherhood would be a specific instance of Mills' conduct
which could not be proved against him by extrinsic evidence except
as otherwise provided in Rule 608(b). It was enough that such
evidence could properly be found admissible to show bias.
The judgment of the Court of Appeals is
707 F.2d 1013 (1983).
we discussed the
First Amendment right of association as it bore on the right of
persons freely to associate in political groups, short of
participating in unlawful activity. See
395 U.S. at
395 U. S. 49
U.S. at 367 U. S.
-230. Whatever First Amendment associational rights
an inmate may have to join a prison group, see Jones v. North
Carolina Prisoners' Labor Union Inc., 33 U.
(1977), those rights were not implicated by
Ehle's rebuttal of Mills.
Rule 403 provides:
"Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue waste of time, or needless presentation of
Rule 608(b) provides in pertinent part:
"(b) Specific instances of conduct. -- Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
his credibility, other than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence. They may, however, in
the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning his character for truthfulness or
untruthfulness. . . ."