Rule 609 Impeachment by Evidence of Conviction of Crime

• Jurisdiction: Arizona

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or (2) involved dishonesty or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of 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 juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Comment

Paragraph (a) reflects a departure from the corresponding federal rule. While the federal rule provides for admissibility of the prior conviction once either of the two alternative threshold conditions is satisfied, the Arizona rule requires the trial court to determine that the probative value of admitting this evidence outweighs its prejudicial effect in all cases.

The party seeking to impeach has the burden of establishing the probative value.[1] All felonies as a matter of law have probative value,[2] so the party carries its burden of establishing probative value by showing the date, place, and nature of the prior conviction.[3] Whether a prior conviction is a felony is determined by the laws of the jurisdiction under which the person was convicted.[4] The party may introduce other relevant circumstances, but this is necessary only to offset a showing by the other party of circumstances establishing an unfairly prejudicial effect.[5] Other relevant circumstances that case law mentions include impeachment value of the prior conviction (such as whether the prior conviction involves making false statements), length of time since the prior conviction, the witness's history since the prior conviction, the similarity between the past and present crimes, and the importance of the defendant's testimony. The witness being impeached does not, however, have the right to explain the facts underlying that conviction.[6] In cases involving a swearing contest between witnesses, the cases note the desirability of having the jurors aware of the witness's prior conviction in assessing credibility.[7] Evidence of a prior conviction is admissible only to show the witness's character for truthfulness, and is not admissible to show the witness's character to show action in conformity with that character, unless evidence of the crime has its own independent relevance.[8]

Once one party has established the probative value, the other party has the burden of establishing the prejudicial effect.[9] The cases have held that all felonies have prejudicial effect, but state that this alone is not enough to exclude the evidence.[10] The cases require the party to establish that the evidence of the prior conviction is unfairly prejudicial. A possible example is where the prior conviction is for the same crime for which the defendant is on trial, although the cases have held that a prior conviction must not be excluded for this reason alone.[11] Moreover, the mere fact that the defendant's entire case depends on the defendant's testimony does not make the evidence of a prior conviction inadmissible.[12] Some courts have excluded evidence of multiple prior felonies, although recent cases have held that excluding such evidence might mislead the jurors into believing action that affected witness's credibility was only an isolated event.[13] The result is that the appellate courts leave this question almost totally to the discretion of the trial court, and will not reverse absent a clear showing of abuse of discretion.

While all felonies are admissible, misdemeanors are admissible only if they involve dishonesty or false statement.[14] These include perjury, criminal fraud, embezzlement, false pretense, and other offenses in the nature of crimen falsi. An open-ended offense is considered a felony for impeachment purposes until it is designated a misdemeanor.[15]

The trial court should make a finding on the record that the probative value outweighs the prejudicial effect before it admits evidence of the prior conviction, but the appellate courts have held that failure to enumerate the specific facts and circumstances upon which the ruling is based is not reversible error if such information appears in the record.[16] The trial court does not have to give the reasons why it reached its conclusion.

If the trial court rules that evidence of the prior conviction is admissible and the party then chooses not to have the witness testify, the party waives the right to challenge the ruling of the trial court on appeal.[17] The party may call the witness and "draw the sting" by impeaching with the prior conviction without waiving the issue on appeal.[18]

Once the trial court admits evidence impeaching a defendant, the trial court must instruct the jurors on the limited purpose for which the evidence was admitted if the defendant requests this instruction. Failure to so instruct, however, is not fundamental error.[19]

Paragraph (b) provides a 10-year guideline (though not an absolute cutoff date) from either the date of conviction or the release from confinement, whichever is later. This reflects the consideration that, if the witness has led a legally blameless life for this time period, the evidence is too remote to have a bearing on the witness's credibility.[20] In such a situation, the trial court should admit this evidence only if it finds that the probative value "substantially outweighs" the prejudicial effect, and must make a finding to this effect on the record, stating the facts and circumstances supporting this finding.[21]

Paragraph (c) provides two standards for the trial court to use to determine whether a pardon, annulment, or rehabilitation certificate should preclude impeachment with the previous conviction: a finding of rehabilitation and a finding of innocence.[22] A determination that the conviction was later subject to a finding of innocence is not a difficult standard to apply. A finding of rehabilitation by appropriate procedure may require more extensive proof. The burden rests on counsel proposing to use a pardoned witness to gather the pertinent facts underlying the pardon or certificate of rehabilitation, and to demonstrate that Rule 609(c) bars use of the conviction. This should be done in a hearing to the trial court outside the presence of the jurors. This section governs the procedure if another jurisdiction has issued a certificate of rehabilitation, and does not give the Arizona courts the power to grant a certificate of rehabilitation.[23]

Paragraph (d) conflicts with A.R.S. Sec. 8-207(C), which provides that a juvenile adjudication shall not be used against the child in any case or proceeding in any court other than juvenile court (except that the Department of Transportation may use the information). Arizona has held that, when A.R.S. Sec. 8-207(C) conflicts with the constitutional right of a defendant to present evidence, the defendant's right to present evidence prevails.[24] Although evidence of a juvenile adjudication is generally not admissible to impeach credibility, such evidence is admissible when offered to show such things as bias, motive, or prejudice relating to the specific crime in question.[25]

Paragraph (e) provides that a witness may be impeached with a conviction that is presently pending on appeal.[26] This is based upon the presumption of correctness that applies to judicial proceedings.

Cases

Paragraph (a) - General rule.

609.a.010 A party seeking to impeach has the burden of establishing the probative value of the prior conviction.

State v. Ferguson,149 Ariz. 200, 717 P.2d 879 (1986) (party seeking to impeach witness with evidence of court-martial conviction must show that crime was punishable by death or imprisonment in excess of 1 year, or that it involved dishonesty or false statement).

State v. Williams,144 Ariz. 433, 698 P.2d 678 (1985) (party must establish existence of conviction either by admission from defendant or by public record).

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