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Text Box: Impeachment by Evidence of a Criminal Conviction
   Posted on November 9, 2012 by John E. Nicoll

In a federal criminal case, Federal Rule of Evidence 609 controls the use of criminal convictions as impeachment evidence against a testifying witness.  The rule provides for the introduction of two categories of convictions.  The first category focuses on the length of sentence.  It allows for the admission of a conviction “that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year.” F.R.E. 609(a)(1).  The second category focuses on the offense of conviction. For this category, the rule allows for the admission of any conviction in which “one of the elements of the crime of conviction required a dishonest act or false statement.” F.R.E. 609(a)(2). 

For ease of discussion, we will refer to the first category of offenses as “felony convictions” and the second category as “convictions for crimes of dishonesty.” It is important to note that convictions for crimes of dishonesty are always admissible while felony convictions may be excluded under certain circumstances.   In regard to felony convictions, a court may exclude a particular felony convictions against a witness other than the defendant if the court determines that the probative value of said conviction is “substantially outweighed” by the danger of “unfair prejudice, confusing the issues, misleading the jury, or needlessly presenting cumulative evidence.” Likewise, a court may exclude the use of a certain felony conviction against a defendant if the probative value of the evidence is “outweighed” by the danger of unfair prejudice to the defendant. F.R.E. 609(a)(1)(b).  

Normally, the use of a conviction to impeach must occur within ten years “since the witness’s conviction or release from confinement for it, whichever is later.” F.R.E. 609(b).  However, in some limited instances, a prior conviction that is older than ten years can be used if its probative value “substantially outweighs” its prejudicial effect and the proponent of the evidence provides the adverse party notice of intent to use such conviction so that the adverse party has a “fair opportunity to contest its use.”

The Nicoll Law Firm, PLLC is located in Manchester, Tennessee and services clients in middle and eastern Tennessee. 


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