§609 Impeachment by Evidence of Conviction of Crime
Library | Evidence Restated Deskbook (2021 Ed.) |
§609 Impeachment by Evidence of Conviction of Crime
A. General rule
1. Prior criminal convictions. Any prior criminal conviction may be proved to affect the credibility of a witness in a civil or criminal case.
2. Prior pleas of guilty, pleas of nolo contendere, and findings of guilty in criminal cases. Any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect the credibility of a witness in a criminal case. In civil proceedings, a witness can be impeached only by proof of a conviction.
B. Proof, how made. Proof may be made by cross-examination or by the record of conviction, plea, or finding.
C. Time limit, nature of conviction, discretion to exclude. There are no limitations on the age of convictions that may be used, nor is there a limitation based on whether the prior crime is similar in nature or not to the crime for which a defendant is being tried.
The trial court has no discretion to prevent the use of prior criminal convictions to impeach the credibility of a witness or the accused.
D. Effect of pardon. Generally, in the absence of a statute, a pardon does not preclude the use of a conviction for the purpose of impeaching the credibility of a witness.
E. Juvenile adjudications
1. General rule. A juvenile court adjudication is not a conviction for purposes of impeachment.
2. Exception. Adjudications for the commission of certain acts that would have been criminal if committed by an adult are admissible to affect the credibility of a witness or defendant in criminal cases.
a. Evidence of a juvenile adjudication may be admissible in a criminal case to affect the credibility of a witness or a defendant if the act leading to the adjudication occurred within three years of the date of the sworn testimony and the act:
· would have been a class A or B felony if committed by an adult; or
· would have been a class C or D felony if committed by an adult and the record contains at least one other adjudication for any act that would have been a felony if committed by an adult.
b. When the defendant is charged with a sexual offense under the provisions of Chapter 566, RSMo (sexual offenses), a juvenile adjudication of the defendant may be used to question the credibility of the defendant if the adjudication is for an act that would have been a violation of Chapter 566 if the act had been committed by an adult and if the adjudication occurred within three years of the commission of the pending offense. But if the defendant's juvenile court records contain more than one adjudication for acts that would have been a violation of Chapter 566 if committed by an adult, the multiple adjudications are admissible for impeachment regardless of when they occurred.
F. Pendency of appeal. Only final judgments of conviction may be used to impeach. A final judgment of conviction is one made so by affirmance on appeal or by lapse of time permitted for a notice of appeal without an appeal having been taken.
Notes
A. General rule
1. Prior criminal convictions
One of the most commonly recognized methods of impeaching a witness is by showing evidence of prior convictions. It may be done through cross-examination or by extrinsic evidence through the record of conviction. Taylor v. State, 173 S.W.3d 359 (Mo. App. S.D. 2005).
Authority for the use of prior convictions to impeach a witness is grounded in § 491.050, RSMo 2016, which provides as follows:
Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.
Statute confers an absolute right to impeach with a conviction
Section 491.050, RSMo 2016, confers "an absolute right to show prior convictions solely to affect credibility." State v. Morris, 460 S.W.2d 624, 629 (Mo. 1970) ("While we recognize . . . that some text writers have criticized the rule which is embodied in § 491.050, we nevertheless conclude that the section does confer an absolute right to show prior convictions solely to affect credibility. If any change therein is to be made, it is up to the General Assembly to do so."); State v. Simmons, 825 S.W.2d 361, 364 (Mo. App. E.D. 1992) ("The trial court has no discretion to prevent the use of prior criminal convictions to impeach the credibility of a witness or the accused."); see also State v. Givens, 851 S.W.2d 754, 759 (Mo. App. E.D. 1993); M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo. banc 1995).
Accordingly, "[w]hen a defendant elects to testify on his or her own behalf, the State has an absolute right to impeach the accused with prior convictions." Taylor v. State, 173 S.W.3d 359 (Mo. App. S.D. 2005). But see Lewis v. Wahl, 842 S.W.2d 82, 84–98 (Mo. banc 1992) (exclusion of speeding conviction was held not so prejudicial as to constitute reversible error; opinion concurring in result urged limitation on impeachment by misdemeanor conviction to when probative of "truth telling"). See also Aziz v. Jack in the Box, 477 S.W.3d 98, 108 (Mo. App. E.D. 2015) (no reversal based on exclusion of evidence of a prior conviction unless the error resulted in prejudice that would have materially affected the merits of the case, such as when the parties present contradictory testimony on a material fact, putting the witness's credibility at issue).
Criminal defendant may disclose conviction on direct examination to mitigate effect of conviction
"Although § 491.050[, RSMo 2016,] permits proof of prior convictions to be made by the record or through cross-examination, a [criminal] defendant may...
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