Impeachment by Evidence of a Criminal Conviction (Rule 609) Chapter

AuthorColin Miller
Pages1-44
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Impeachment by Evidence
of a Criminal Conviction
(Rule 609) Chapter
I. An Introduction to Impeachment Evidence
Propensity character evidence is evidence used to prove that a person
has a propensity to act a certain way and that he likely acted in
conformity with that propensity at the time of a pre-trial wrong. For
instance, evidence that a defendant charged with battery had a prior
conviction for battery would be used to prove his propensity to act
violently and his likely conformity with that propensity at the time of
the crime charged (“Once a batterer, always a batterer.”). Propensity
character evidence is generally inadmissible. See Federal Rule of
Evidence 404. When a party impeaches a witness with evidence of a
prior conviction, the party is also asking the jury to engage in a
propensity/conformity analysis, but it is a different propensity
conformity analysis. The goal of the party in impeaching a witness is
to use the witness’s prior conviction(s) to prove that the witness has a
propensity to be deceitful and that the witness is likely acting in
conformity with that propensity by lying on the witness stand and/or
when making a prior statement admitted at trial to prove the truth of
the matter asserted. Impeachment through evidence of prior
convictions is covered by Federal Rule of Evidence 609.
II. The Rule
Federal Rule of Evidence 609. Impeachment by Evidence of
Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s
character for truthfulness by evidence of a criminal conviction:
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(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:
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(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.
III. Historical Origins
In the common law days, the doctrine of disqualification for infamy
deemed an individual who had been convicted of a felony or a crime
of crimen false incompetent to testify at trial. At the time, felony
convictions were generally defined as convictions for crimes
punishable by incarceration for more than one year while crimen falsi
referred to crimes involving fraud, deceit, or obstruction of justice.
This “infamy rule” was part of a patchwork of rules deeming certain
categories of individuals incompetent to testify at trial. For instance,
spouses were incompetent to testify under the doctrine of coverture
and atheists were incompetent to testify on the grounds of irreligion.
Eventually, statutory reforms replaced these incompetence rules. One
such reform replaced the doctrine of disqualification for infamy with
a rule permitting convicted individuals to testify, but allowing for the
automatic admission of evidence of their felony and crimen falsi
convictions for impeachment purposes, i.e., to call into question their
credibility as witnesses. Subsequently, most courts relented in the face
of scholarly criticism of such automatic admission and shifted toward
a more flexible approach under which they balanced a conviction's
probative value against its prejudicial effect before admitting it.
IV. Federal Rule of Evidence 609
A. Passage of Rule 609
Congress eventually codified this common law into Federal Rule of
Evidence 609, which was “[s]ewn together using disparate parts and

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