IMPROPER WITNESS CHARACTER EVIDENCE (CONVICTIONS) (K)

FRE 609

Generally, questions about a witness’s prior convictions are inadmissible unless (a) the crime involves dishonesty or false statement, or (b) the crime was a felony and the probative value is greater than the danger of prejudice to the defendant. Additionally, the conviction will be admissible if the conviction or release is within the last 10 years unless the court finds the danger of prejudice too great. If the conviction is more than 10 years old, then written notice and opportunity to be heard must be given to the opposing party.

Examples

• “You want the jury to believe you, even though you were arrested for driving without a license twelve years ago?”
• “You want the jury to take the word of a petty thief?”
• “So, you claim to be an honest person, but then, why were you convicted 12 years ago for armed robbery?”

FRE 609. Impeachment by Evidence of a Criminal Conviction.

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Summary

Rule 609 is a delicate rule and subject to careful scrutiny by the court “because of the inherent danger that a jury may convict a defendant because he is a bad person instead of because the evidence of the crime with which he is charged proves him guilty.” U.S. v. Holloway, 1 F.3d 307, 311 (5th Cir. 1993). Under Rule 609, a prior conviction can be admitted for impeachment purposes, but may not contain surrounding details. Only the general nature and punishment of the felony may be admitted.

Crimes of dishonesty or false statement, regardless of the punishment (whether felony or misdemeanor), can be used to impeach any witness at any time. As long as the conviction is less than 10 years old, a party may introduce such evidence. Some examples of these types of crimes include perjury, bank fraud, embezzlement, false statements to government officials, failure to file tax returns, false and misleading statements in the sale of securities, and making false claims to the U.S. government. Examples of crimes that have been excluded as a “crime of dishonesty or false statement” include petty shoplifting, smuggling drugs, marijuana possession, bank robbery, rape, arson, and prostitution.

Juvenile adjudications can never be used to impeach a criminal defendant, but they can be used against a witness in a criminal case if the conviction is of a type that would be admissible to attack the credibility of an adult.

Case Law (Prior Convictions)

• U.S. v. Greenidge, 495 F.3d 85 (3d Cir. 2007), cert. denied, 128 S. Ct. 551 (2007) (in a bank fraud case, stealing money from his employer was admitted, with judge finding that such evidence was not similar enough to bank fraud to raise an impermissible propensity inference)
• United States v. Headbird, 461 F.3d 1074 (8th Cir. 2006) (defendant’s prior convictions properly admitted because prior felony convictions are highly probative of credibility as “one who has transgressed society's norms by committing a felony is less likely than most to be deterred from lying under oath.”)
• Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000) (evidence that witness was owner of a corporation that had been convicted of embezzling money was admissible to impeach the witness)
• Old Chief v. United States, 519 U.S. 172 (1997) (if the defendant does not testify, prior convictions cannot be admitted for “impeachment” purposes)
• Hunnicutt v. Wright, 986 F.2d 119 (5th Cir. 1993) (a witness’s felony convictions which were more than ten years old, and evidence of witness’s incarceration were inadmissible)
• U.S. v. Sanders, 964 F.2d 295 (4th Cir. 1992) (where the defendant was on trial for assault with a knife, a prior conviction for the same conduct should have been excluded because it was highly prejudicial)
• Altobello v. Borden Confectionery Prods., Inc., 872 F.2d 215 (7th Cir. 1989) (misdemeanor conviction for tampering with electric meters to reduce electric bill involved deceit and was properly admitted to impeach a witness’s credibility under “crimes of dishonesty”)
• U.S. v. Gordon, 780 F.2d 1165 (5th Cir. 1986) (limiting cross-examination to the number of convictions, the nature of the crimes and the dates and times of the convictions and excluding the particular facts of defendant’s previous offenses)
• United States v. Klayer, 707 F.2d 892 (6th Cir. 1983) (even though conviction was on appeal, defendant could still be impeached with the prior conviction at trial)