Federal Rules of Evidence – Rule 609 (through December 1, 2015)
Recent criminal convictions. Recent criminal convictions are normally admissible for impeachment, even if appeals are pending, if the convictions required an element of dishonesty or the convictions were felonies.
- In fact, if the witness is a criminal defendant, the court must admit the recent criminal conviction if prejudicial risks are outweighed, even slightly, by probative value.
- If the witness is not a criminal defendant, the court cannot exclude the recent criminal conviction unless prejudicial risks substantially outweigh probative value.
Old criminal convictions. Any witness’s old felony conviction (or old conviction requiring an element of dishonesty) is only admissible if prejudicial risks are substantially outweighed by probative value, that probative value is supported by the specific circumstances, and you give opposing counsel reasonable, prior, written notice.
- What do we mean by “old” convictions? It means the witness was released over ten years ago if the witness was locked up. If the witness was not locked up, it means the witness was convicted over ten years ago.
What if the prior conviction was for juvenile crimes?
- Then you cannot introduce evidence about it unless you’re a prosecutor, the witness is not the criminal defendant, admitting the evidence is necessary for a fair trial, and the evidence would be admissible if the witness had been an adult at the time of the crime.
What if the witness’s prior conviction was pardoned or annulled?
- Then you cannot introduce evidence about it unless the cancellation was justified by rehabilitation and the “rehabilitated” relapsed—was convicted of a later serious crime.
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(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: (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.
Selected Committee Notes
As a means of impeachment, evidence of conviction of crime is significant only because it stands as proof of the commission of the underlying criminal act. There is little dissent from the general proposition that at least some crimes are relevant to credibility but much disagreement among the cases and commentators about which crimes are usable for this purpose. See McCormick §43; 2 Wright, Federal Practice and Procedure; Criminal §416 (1969). The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense. This is the view accepted by Congress in the 1970 amendment of §14–305 of the District of Columbia Code, P.L. 91–358, 84 Stat. 473. Uniform Rule 21 and Model Code Rule 106 permit only crimes involving “dishonesty or false statement.” Others have thought that the trial judge should have discretion to exclude convictions if the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Law & Soc. Order 1. Whatever may be the merits of those views, this rule is drafted to accord with the Congressional policy manifested in the 1970 legislation.
The proposed rule incorporates certain basic safeguards, in terms applicable to all witnesses but of particular significance to an accused who elects to testify. These protections include the imposition of definite time limitations, giving effect to demonstrated rehabilitation, and generally excluding juvenile adjudications.
Subdivision (a). For purposes of impeachment, crimes are divided into two categories by the rule: (1) those of what is generally regarded as felony grade, without particular regard to the nature of the offense, and (2) those involving dishonesty or false statement, without regard to the grade of the offense. Provable convictions are not limited to violations of federal law. By reason of our constitutional structure, the federal catalog of crimes is far from being a complete one, and resort must be had to the laws of the states for the specification of many crimes. For example, simple theft as compared with theft from interstate commerce. Other instances of borrowing are the Assimilative Crimes Act, making the state law of crimes applicable to the special territorial and maritime jurisdiction of the United States, 18 U.S.C. §13, and the provision of the Judicial Code disqualifying persons as jurors on the grounds of state as well as federal convictions, 28 U.S.C. §1865. For evaluation of the crime in terms of seriousness, reference is made to the congressional measurement of felony (subject to imprisonment in excess of one year) rather than adopting state definitions which vary considerably. See 28 U.S.C. §1865, supra, disqualifying jurors for conviction in state or federal court of crime punishable by imprisonment for more than one year.
Subdivision (b). Few statutes recognize a time limit on impeachment by evidence of conviction. However, practical considerations of fairness and relevancy demand that some boundary be recognized. See Ladd, Credibility Tests—Current Trends, 89 U.Pa.L.Rev. 166, 176–177 (1940). This portion of the rule is derived from the proposal advanced in Recommendation Proposing in Evidence Code, §788(5), p. 142, Cal.Law Rev.Comm’n (1965), though not adopted. See California Evidence Code §788.
Subdivision (c). A pardon or its equivalent granted solely for the purpose of restoring civil rights lost by virtue of a conviction has no relevance to an inquiry into character. If, however, the pardon or other proceeding is hinged upon a showing of rehabilitation the situation is otherwise. The result under the rule is to render the conviction inadmissible. The alternative of allowing in evidence both the conviction and the rehabilitation has not been adopted for reasons of policy, economy of time, and difficulties of evaluation.
A similar provision is contained in California Evidence Code §788. Cf. A.L.I. Model Penal Code, Proposed Official Draft §306.6(3)(e) (1962), and discussion in A.L.I. Proceedings 310 (1961).
Pardons based on innocence have the effect, of course, of nullifying the conviction ab initio.
Subdivision (d). The prevailing view has been that a juvenile adjudication is not usable for impeachment. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of circumstances. By virtue of its informality, frequently diminished quantum of required proof, and other departures from accepted standards for criminal trials under the theory of parens patriae, the juvenile adjudication was considered to lack the precision and general probative value of the criminal conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these characteristics insofar as objectionable, other obstacles remain. Practical problems of administration are raised by the common provisions in juvenile legislation that records be kept confidential and that they be destroyed after a short time. While Gault was skeptical as to the realities of confidentiality of juvenile records, it also saw no constitutional obstacles to improvement. 387 U.S. at 25, 87 S.Ct. 1428. See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967). In addition, policy considerations much akin to those which dictate exclusion of adult convictions after rehabilitation has been established strongly suggest a rule of excluding juvenile adjudications. Admittedly, however, the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore was outspoken in his condemnation of the disallowance of juvenile adjudications to impeach, especially when the witness is the complainant in a case of molesting a minor. 1 Wigmore §196; 3 Id. §§924a, 980. The rule recognizes discretion in the judge to effect an accommodation among these various factors by departing from the general principle of exclusion. In deference to the general pattern and policy of juvenile statutes, however, no discretion is accorded when the witness is the accused in a criminal case.
Subdivision (e). The presumption of correctness which ought to attend judicial proceedings supports the position that pendency of an appeal does not preclude use of a conviction for impeachment. United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949), cert. denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 and 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th Cir. 1964), Contra, Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949). The pendency of an appeal is, however, a qualifying circumstance properly considerable.
Key Rules (MBE/MEE)
- FRE 103 – Evidence Rulings
- FRE 105 – Limiting How Evidence may be Used
- FRE 106 – Completeness Rule
- FRE 201 – Judicial Notice
- FRE 301 – Presumptions
- FRE 401 – Relevance
- FRE 402 – Irrelevant = Inadmissible
- FRE 403 – Excluding the Prejudicial, Confusing, etc.
- FRE 404 – Character Evidence
- FRE 405 – Proving Character
- FRE 406 – Habit, Routine
- FRE 407 – Subsequent Remedial Measures
- FRE 408 – Compromise Negotiations
- FRE 409 – Offers to Pay Expenses
- FRE 411 – Liability Insurance
- FRE 412 – Victim’s Sexual Predisposition
- FRE 413, 414, 415 – Other Sex-Related Rules
- FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
- FRE 601 – Witness Competency
- FRE 602 – Personal Knowledge
- FRE 605 – Judge as Witness
- FRE 606 – Juror as Witness
- FRE 607 – Impeachment
- FRE 608 – Honest, Dishonest Character
- FRE 609 – Evidence of Criminal Conviction
- FRE 611 – Mode, Order of Evidence
- FRE 612 – Recollection Refreshed
- FRE 613 – Prior Statements
- FRE 614 – Court Witness Examination
- FRE 615 – Excluding Witnesses
- FRE 701 – Non-Expert Opinion
- FRE 702 – Expert Opinion
- FRE 703 – Bases of Expert Opinion
- FRE 704 – Ultimate Issue
- FRE 705 – Disclosing Underlying Data
- FRE 801 – Hearsay Defined
- FRE 802 – Rule Against Hearsay
- FRE 803 – Strong Hearsay Exceptions
- FRE 804 – Weak Hearsay Exceptions
- FRE 805 – Double Hearsay
- FRE 806 – Impeaching Hearsay Declarants
- FRE 807 – Residual Hearsay Exception
- FRE 901 – Authentication, Identification
- FRE 902 – Self-Authenticating Evidence
- FRE 1001 – Original Defined
- FRE 1002 – Original Sometimes Required
- FRE 1003 – When Copies Generally Admissible
- FRE 1004 – Other Times Admissible
- FRE 1005 – Public Record Copies Often Admissible
- FRE 1006 – Summaries
- FRE 1007 – Acknowledged Content
- FRE 1008 – Functions of Court, Jury
- FRE 1101 – Rules’ Applicability