Use of Criminal History to Impeach Witness in Federal Court

             Rule 609 of the Federal Rules of Evidence provides for the admission of criminal history evidence to impeach a witness:

 (a)  General rule.  For the purpose of attacking the character for truthfulness 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 regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

 Fed. R. Evid. 609 (a). 

             “Courts used to be divided on how Rule 609 applied to civil witnesses.  In 1989, the Supreme Court addressed this ambiguity and held courts lacked discretion regarding whether to admit prior convictions against civil witnesses.  Green v. Bock Laundry Machine Co., 490 U.S. 504, 524 (1989).  However, the Green Court called for an amendment to the Rule, id., and Congress responded.  In 1990, Congress amended HN2609(a) to clarify that prior convictions of all witnesses other than criminal defendants, if punishable by death or imprisonment in excess of one year and not involving dishonesty or false statements, shall be admitted subject to Rule 403. See Fed. R. Evid. 609 advisory committee’s notes; Weinstein & Berger, 4 Weinstein’s Federal Evidence § 09.04[3] [a], § 09App.03[2].”  Miller v. Hoffman, No. 97-7987, 1999 U.S. Dist. LEXIS 9276 (E.D. Pa. June 21, 1999).  See Romanelli v. Suliene, 615 F.3d 847, 855 (7th Cir. 2010) (“Under Federal Rule of Evidence 609(a)(1), evidence of prior felony convictions is admissible in a civil case to impeach the credibility of the plaintiff, subject to Rule 403.”). 

             Rule 403 requires the district court to balance the probative value of the evidence against the risk of unfair prejudice to the plaintiff.  Even though evidence may be relevant, it may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Fed. R. Evid. 403 (“evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence”).  The party opposing admission of the evidence has the burden of demonstrating that the probative value of the conviction is substantially outweighed by the danger of unfair prejudice.  United States v. Tse, 375 F.3d 148, 164 (1st Cir. 2004). 

             A crime relating to a witness’s honesty may be admitted regardless of the term of imprisonment, if any.  Fed. R. Evid. 609(a)(2).  The district court does not have discretion to exclude evidence of such crimes.  United States v. Tracy, 36 F.3d 187, 192 (1sr Cir. 1994).  “By the phrase ‘dishonesty and false statement’ the Conference means crimes such as perjury or subornation or perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”  Id. (quoting H.R. No. 93-1597).  This would include, for example, a conviction for “uttering a false prescription.”  Id.  By contrast, crimes relating to property do not clearly suggest lack of veracity.  See, e.g., United States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008) (auto entry, which is a property crime, “does not generate much traction along the road toward probative value in connection with the question of its perpetrator’s veracity”).

             Generally, a qualifying conviction may be admitted if it occurred within 10 years of the proffered testimony:

 (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 the conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

 Fed. R. Evid. 609(b).  As indicated by the rule, a conviction more than ten years old may be admissible under particularly relevant circumstances.  A stale conviction, however, “must scale an appreciably higher hurdle” than one occurring within 10 years of the proffered evidence.  Nguyen, 542 F.3d at 280.  “The qualitative requirement for ‘specific facts and circumstances’ and the quantitative requirement that probative value be shown ‘substantially’ to outweigh prejudicial effect combine to make the barrier to admissibility of stale convictions under Rule 609(b) much higher than the barrier for the admissibility of recent convictions under Rule 609(a).”  Id. 

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: