Impeccable Impeachment and the Use of Prior Convictions

img_0925“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.”   Gary Hamel

What are the limitations on the use of prior convictions in challenging a witness’s credibility? When are you allowed to use them? What are you allowed to reveal?  This blawg note will explore these issues.  Let’s first start with the rule:

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a)      General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must  be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.

(b)      Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (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 (1) 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.

                Juvenile Convictions:  Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).

Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied. 

When Does the 10 Year Period Begin and End:  There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998).   “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.

Guilty Pleas:  The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)).  McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.

Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect:   Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996).  Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993).  To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect.  This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.

Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:

(1) the impeachment value of the prior crime;

(2) the point in time of the conviction and the witness’ subsequent history;

(3) the similarity between the past crime and the charged crimes;

(4) the importance of the defendant’s testimony; and

(5) the centrality of the credibility issue.

Castor, 937 F.2d at 299 n. 8; see Miller, at 171.

Impeaching Your Own Witness:  Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).

Revelations Concerning the Facts Surrounding the Conviction:  When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001).  A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction.  Id.   However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible.  Id.

Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.

 

What are the limitations on the use of prior convictions? When are you allowed to use them? What are you allowed to reveal?  This note will explore these issues.  Let’s first start with the rule:

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a)      General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must  be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.

(b)      Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (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 (1) 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.

Below are some thoughts on some of the issues concerning the use and admissibility of prior convictions:

                Juvenile Convictions:  Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).

Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied. 

When Does the 10 Year Period Begin and End:  There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998).   “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.

Guilty Pleas:  The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)).  McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.

Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect:   Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996).  Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993).  To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect.  This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.

Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:

(1) the impeachment value of the prior crime;

(2) the point in time of the conviction and the witness’ subsequent history;

(3) the similarity between the past crime and the charged crimes;

(4) the importance of the defendant’s testimony; and

(5) the centrality of the credibility issue.

Castor, 937 F.2d at 299 n. 8; see Miller, at 171.

Impeaching Your Own Witness:  Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).

Revelations Concerning the Facts Surrounding the Conviction:  When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001).  A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction.  Id.   However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible.  Id.

Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.

 

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on September 26, 2017, in cross-examination, dos and don'ts, Evidence, rule 403, Rules of Evidence, Uncategorized and tagged , , , , , , . Bookmark the permalink. Leave a comment.

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