§ 22.08 Untruthful Character—Prior Conviction: FRE 609
| Jurisdiction | North Carolina |
[A] Overview
Rule 609 governs the admissibility of evidence of prior convictions offered for impeachment to show untruthful character. The rule applies to both civil and criminal cases and to the impeachment of any witness, including a criminal defendant. When evidence of a prior conviction is admitted under Rule 609, a limiting instruction is required upon request.77 A different rule, Rule 608(b), governs impeachment by specific instances of untruthful conduct that have not resulted in a conviction.78
Convictions: other theories of admissibility. If prior-conviction evidence is offered under an impeachment theory other than untruthful character or for reasons other than impeachment, Rule 609 is inapplicable. For example, evidence of a conviction may be admissible to show that a convicted witness has received, or expects to receive, favorable treatment from the prosecution (i.e., bias). Similarly, evidence of a conviction may be admissible under Rule 404(b) ("other acts") as proof of motive, opportunity, intent, and so forth. Also, if an accused testifies that he has "never committed a crime in his life," a prior conviction may be offered in rebuttal.79 Moreover, sometimes a prior conviction is an element of a subsequently tried offense, in which case the prior conviction must be proved.80 Here, the evidence is substantive, not impeaching.81
[B] Conviction Defined; Arrests; No-Contest Pleas
Rule 609 applies only to convictions. Convictions based on no contest pleas should be admissible.82 The policies underlying no contest pleas are not applicable in this context.83 Arrests and indictments are not admissible under Rule 609.84 The conduct that is the basis for an arrest or indictment may, however, be admissible pursuant to Rule 608(b) if it reflects untruthful character.
[C] Rationale
The theory of admissibility underlying Rule 609 corresponds to the theory underlying Rule 608 (reputation, opinion, and specific acts): a person with an untruthful character is more likely to lie than a person without that character trait.85
Determining which crimes reflect untruthful character is the critical issue.86 For example, should a prior conviction for driving while intoxicated be admissible? The conviction reveals little about a person's character for truthfulness, although it may reveal other aspects of that person's character. Moreover, if convictions are automatically admissible, an accused with a prior criminal record may for that reason alone not testify, even if innocent.87 And not taking the stand comes with its own risks; jurors naturally want to hear the defendant's side of the story, even though they will be instructed not to draw any adverse inferences from a failure to testify.88
The solution embedded in Rule 609 is to recognize the trial court's discretion to exclude prior convictions in some (but not all) circumstances. Thus, Rule 609(a) limits the types of convictions that are admissible to (1) crimes punishable by death or imprisonment for more than one year ("felonies") and (2) crimes of dishonesty and false statement ("crimen falsi"), regardless of punishment. Additional restrictions are discussed later in this chapter.89
[D] Felony-Level Convictions: The Accused
Under Rule 609(a)(1)(B), prior convictions involving crimes punishable by death or imprisonment for more than one year may be admissible against a criminal defendant.90Note that the label "felony" is technically not correct and is used here only as a convenient shorthand label.91 State as well as federal convictions fall within the rule. The authorized maximum punishment, rather than the actual punishment imposed, is determinative.
Discretion. Admissibility is not automatic, however; it is subject to the trial court's discretion. Only if the probative value of the prior conviction outweighs the unfair prejudice to the defendant is the evidence admissible. As discussed below, Rule 609(a)(1) operates differently when used to impeach witnesses other than the accused.
[1] Relevant Factors
A number of factors should influence the trial court's admissibility determination: "(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue."92
Impeachment value of prior crime. A prior conviction that bears upon veracity has high probative value for reflecting untruthful character. In contrast, a crime of violence has little probative value for this purpose. Note, however, that crimes of dishonesty or false statement ("crimen falsi"), which are the most probative of veracity, are automatically admissible under Rule 609(a)(2), which is discussed below. Nevertheless, offenses falling outside the crimen falsi classification are not all alike; some reflect untruthful character more than others.93 For example, burglary is more probative than assault.94Some courts suggest narcotic trafficking carries similar probative value.95
Age of prior conviction (remoteness). A one-year-old conviction is more probative than an eight-year-old conviction.96 The witness's criminal history after the prior conviction is also relevant; the remoteness theory does not apply if the defendant has been convicted in the interval between the prior conviction and the current trial. Convictions more than ten years old, however, are subject to the special limitations of Rule 609(b). See below.
Similarity of crimes. The similarity between the prior offense and the charged offense is a relevant factor. If a defendant is charged with a narcotics offense, evidence of a prior narcotics conviction is more prejudicial than a prior burglary conviction. The jury is more likely to improperly use the prior narcotics conviction as evidence of character to commit narcotics offenses rather than as evidence of untruthful character. In short, this factor focuses on the prejudicial impact of the prior conviction, not on its probative value.97
Need for (importance of) accused's testimony. If the defendant is the only person who can provide defense evidence, the need for his testimony is greater and the argument for exclusion of the prior conviction is stronger. An entrapment defense is an example, as is a "home-alone" alibi.
Centrality of credibility at trial. If the case boils down to a "swearing contest" between two witnesses, one of whom is the accused, it is important for the jury to know of any evidence affecting credibility. Thus, the argument for admission of the prior conviction is greater,98 especially if the prosecution witness has been impeached with a prior conviction.
Other factors. Additional factors include the length of the defendant's criminal record99 and the circumstances surrounding the prior offense.
[2] Balancing of Factors
The factors discussed above may, in a particular case, cancel each other out—for example, the need for the accused's testimony may be offset by the centrality of credibility in the case.
The treatment of an accused under Rule 609(a)(1) differs in one important respect from that of other witnesses. Both involve balancing probative value against unfair prejudice. However, impeachment of a witness other than an accused is more readily permitted—i.e., exclusion of the prior conviction is required only when probative value is substantially outweighed by unfair prejudice (Rule 403). The word "substantially" does not appear in Rule 609(a)(1)(B)'s internal balancing scheme, and so admission becomes more difficult under Rule 609. In short, Rule 403 balancing is tilted toward admission, Rule 609(a)(1)(B) toward exclusion.100
Burden of proof. The prosecution bears the burden of showing that the probative value of the evidence outweighs the prejudicial impact.101
[E] Felony-Level Convictions: Other Witnesses
Under Rule 609(a)(1)(A), prior "felony" convictions of witnesses other than an accused may be admissible—i.e., witnesses in civil cases, and prosecution and other defense witnesses in criminal cases.102 Admissibility is not automatic; it is subject to the trial court's discretion under Rule 403.103 In making this determination, the court should consider factors such as the impeachment value of the prior crime, the age of the conviction, and the centrality of credibility in the case, which were discussed in the preceding section.
[F] Crimes of Dishonesty and False Statement ("Crimen Falsi")
Under Rule 609(a)(2), prior convictions involving crimes of dishonesty or false statement (regardless of punishment) are automatically admissible because they are the most probative of veracity. The trial court possesses no discretion to exclude these convictions.104 The rule applies in civil as well as criminal cases.105
Definition. The principal problem in applying this rule is determining what crimes involve a "dishonest act" or "false statement." The Conference Report indicated that these terms included only crimes, such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, false pretenses, or "any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."106 In addition to the above crimes, forgery, bribery,107 counterfeiting,108 and tampering109 convictions are admissible under the rule, but assault and drug offenses are not.110 "[E]vidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime."111
Theft. Although theft offenses are typically thought to involve "dishonesty," federal courts have ruled them inadmissible.112 These courts focus on the term "crimen falsi" in the legislative history, which implies deceit...
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