§ 33.17 Judgment of Previous Conviction: FRE 803(22)

• Jurisdiction: United States

§ 33.17 Judgment of Previous Conviction: FRE 803(22)

Rule 803(22) recognizes a hearsay exception for judgments of previous criminal convictions when offered to prove any fact essential to the judgment.¹⁸⁰ The rule also provides that the "pendency of an appeal may be shown but does not affect admissibility."

Rationale. This exception rests on the high degree of reliability that attends a criminal judgment. Either the defendant pleaded guilty in conformity with the procedural safeguards surrounding the acceptance of guilty pleas, including the right to counsel, or was convicted (beyond a reasonable doubt) after a trial.

Rebuttal. If evidence of a previous criminal judgment is admitted, rebuttal evidence, typically in the form of an explanation, may also be admissible. As an example, the federal drafters cited North River Ins. Co. v. Militello,¹⁸¹ a case "in which the jury found for plaintiff on a fire policy despite the introduction of his conviction for arson."¹⁸²

Convictions. Rule 803(22) applies only to criminal judgments, including convictions in federal and state courts. Neither a civil judgment nor evidence of an acquittal is admissible under the rule, which limits the types of convictions that are admissible to those involving a crime punishable by death or imprisonment for more than one year.¹⁸³ The maximum punishment for the offense, not the actual punishment imposed, is controlling.¹⁸⁴

No contest plea. A conviction based upon a plea of nolo contendere is inadmissible. This limitation is consistent with Rule 410, which bars pleas of no contest.¹⁸⁵ Precluding admission of pleas of no contest but permitting admission of evidence of a conviction based on such a plea would undercut the usefulness of no contest pleas.

"Essential fact" requirement. Evidence of a previous criminal judgment is admissible only if it "proves any fact essential to the judgment." As the Supreme Court recognized in Emich Motors Corp. v. General Motors Corp.,¹⁸⁶ a pre-Rules case, this requirement may prove troublesome:

The difficult problem, of course, is to determine what matters were adjudicated in the antecedent suit. A general verdict of the jury or judgment of the court without special findings does not indicate which of the means charged in the indictment were found to have been used in effectuating the conspiracy. And since all of the facts charged need not be proved for conviction such a verdict does not establish that the defendants used all of the means charged or any

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