Rule 609. Impeachment by Evidence of Conviction of Crime

• Library: South Carolina Evidence Annotated (SCBar) (2020 Ed.)

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

For the purposes of this rule, a conviction includes a conviction resulting from a trial or any type of plea, including a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

(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 10 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 or other equivalent procedure. 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 a juvenile adjudication is admissible under this rule if conviction of the crime would be admissible to attack the credibility of an adult.

(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.

Note:

Except for subsections (a) and (d), this rule is identical to the federal rule.

Subsection (a) is identical to the federal rule except for the addition of the last sentence. This addition was made to make it clear that the term "conviction" includes a conviction resulting from a trial or any type of plea, to include a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Allowing a plea of nolo contendere to be used for impeachment is consistent with the prior law. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981). Subsection (a) does change the law in South Carolina. The prior law was that a witness could be impeached by evidence that the witness had been convicted of a crime of moral turpitude. State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct. App. 1985), cert. denied, 286 S.C. 127, 332 S.E.2d 533 (1985); State v. Harvey, 275 S.C. 225, 268 S.E.2d 587 (1980). Further, the standard for balancing probative value against prejudicial effect was the same for all witnesses, to include the accused in a criminal case. Green v. Hewett, 305 S.C. 238, 407 S.E.2d 651 (1991). This subsection does not use the moral turpitude standard, but instead allows impeachment with a conviction for any crime which carries a maximum sentence of death or imprisonment for more than one year. Further, the rule provides for a different standard for balancing probative value and prejudicial effect for an accused who is a witness.

Regarding subsection (b), the adoption of a general ten year limit on the use of convictions for impeachment constitutes a change in South Carolina law. The former case law did not set forth a time limit on the use of convictions for impeachment. Green v. Hewett, supra. Instead, the determination whether a conviction was too remote rested in the discretion of the trial judge. Horton v. State, 306 S.C. 252, 411 S.E.2d 223 (1991); State v. Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984); State v. Johnson, 271 S.C. 485, 248 S.E.2d 313 (1978). The ten year limit was adopted to help guide trial courts in making uniform determinations in this area.

Subsection (c) regulates the effect of a pardon, annulment, certificate of rehabilitation or other equivalent procedures on the admissibility of a conviction for impeachment purposes. As to the effect of pardons issued by South Carolina, this subsection is arguably more restrictive than S.C. Code Ann. §24-21-990(5) (Supp. 1993) which provides that a witness cannot be impeached by a conviction for which the witness received a pardon unless the crime indicates a lack of veracity.

The language of subsection (d) of the federal rule, which allows evidence of juvenile adjudications only in criminal cases and does not allow such evidence against the accused, was not used so that the South Carolina rule would conform with state law. Juvenile adjudications are admissible in this state to impeach any witness, including the accused, if the conduct would be criminal if it were committed by an adult. State v. Mallory, 270 S.C. 519, 242 S.E.2d 693 (1978). It should be noted that S.C. Code Ann. § 20-7-780 (Supp. 1993), which makes juvenile records confidential unless otherwise ordered by the family court, may limit access to records of juvenile adjudications.

No South Carolina authority existed as to the effect of the pendency of an appeal on the admissibility of evidence of the conviction. Subsection (e) of the federal rule was adopted verbatim.

Annotations Rule 609

609

Conviction, Not Charge

The "specific mention of his lynching charge was wholly inadmissible under Rule 609, SCRE, which permits the admission of convictions—not charges." Felder v. State, 427 S.C. 518, 526, 832 S.E.2d 591, 594-95 (2019), reh'g denied (Sept. 27, 2019).

The notes to Rule 609 state: "[Subsection A] ... allows impeachment with a conviction for any crime which carries a maximum sentence of death or imprisonment for more than one year." Rule 609 note, SCRE (emphasis added); see Clark v. Cantrell, 332 S.C. 433, 450, 504 S.E.2d 605, 614 (Ct. App. 1998) ("Rule 609(a), SCRE, does not permit mere charges to be used as impeachment evidence."). Felder v. State, 427 S.C. 518, 526, 832 S.E.2d 591, 595 (2019) n. 2, reh'g denied (Sept. 27, 2019).

Generally

"Rule 609 of the South Carolina Rules of Evidence governs the admissibility of a witness's prior convictions for purposes of impeachment." State v. Robinson, 426 S.C. 579, 592, 828 S.E.2d 203, 209 (2019).

We take this opportunity to remind and caution the bench and bar of the inherent prejudice that flows from the use of similar prior convictions for impeachment purposes under Rule 609(a)(1), SCRE. The trial court, in weighing the probative value of prior convictions pursuant to Rule 609(a)(1), SCRE, should consider all relevant factors including but not limited to: "1) the impeachment value of the prior crime; 2) the point in time of the conviction and the witness'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." State v. Bryant, 356 S.C. 485, 490, 589 S.E.2d 775, 777-78 (Ct. App. 2003) (citations omitted) (emphasis added). The current state of the law does not mandate the trial court make an on-the-record specific finding "as long as the record reveals that the trial judge did engage in a meaningful balancing of the probative value and the prejudicial effect before admitting a non-609(a)(2) prior conviction under 609(a)(1)." State v. Scriven, 339 S.C. 333, 341, 529 S.E.2d 71, 75 (Ct. App. 2000). However, as we have urged trial courts, when balancing the probative value of a prior conviction under Rule 609(a)(1) against the prejudicial effect, meaningful appellate review is best achieved when the trial court "articulate[s] its ruling and the basis for it." An on-the-record analysis is especially needed when undertaking a balancing that involves a prior similar offense under Rule 609(a)(1). This is because the "the danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission." State v. Elmore, 368 S.C. 230, 628 S.E.2d 271 (Ct. App. 2006) cert. denied 2007.

Impeachment by Prior Conviction

"The starting point in the analysis is the degree to which the prior convictions have probative value, meaning the tendency to prove the issue at hand—the witness's propensity for truthfulness, or credibility." State v. Black, 400 S.C. 10, 21, 732 S.E.2d 880, 886 (2012). "The tendency to impact credibility ... determines the impeachment value of the prior conviction. Impeachment value refers to how strongly the nature of the conviction bears on the veracity, or credibility, of the witness." Id. at 21-22, 732 S.E.2d at 887. The purpose of the impeachment is not to show the witness is a bad person but rather to show background facts which impact the witness's credibility. State v. Robinson, 426 S.C. 579, 597-98, 828 S.E.2d 203, 212-13 (2019).

Rule 609, SCRE, governs the admissibility of evidence of prior crimes to impeach a witness's credibility. It provides that evidence an accused has been convicted of a prior crime punishable by death or imprisonment in excess of one year is admissible if the court...