Intro to the Federal Rules of Evidence - 41

3. Conviction of Crime (FRE 609)

a. Rationale
a prior crime - > a propensity to break a rule - > likely to break this rule of truthful testimony.

b. Felonies not involving dishonesty or false statement (FRE 609 (a)(1))
i) Rationale
The danger of the jury’s misuse as substantive-propensity evidence of impeachment evidence.
ii) Balancing test
1) the nature of a prior crime: a crime bearing on veracity v. a crime of violence.
The heat-of-passion manslaughter < shoplifting; assault < burglary
2) the newest crime, the more relevant, the more likely to be in
3) the more similar, the more prejudicial, the less likely
4) W= the accused in a criminal case : likely inadmissible
Inadmissible even if its prejudicial effect only slightly exceeds its probative value (FRE 608(a)).
5) any other W: likely admissible
Inadmissible only if its prejudicial effect substantially outweighs its probative value (FRE 403).

c. Crimes of dishonesty and false statement (FRE 609(a)(2))
i) Definition
Crimes of FRE 609(a)(2) (crimen falsi) require an element of dishonesty or false statement.
For example, there are false statement, criminal fraud, embezzlement, false pretenses, forgery, counterfeiting, bribe. But shoplifting, robbery and receiving stolen goods are not crimen falsi, even though a particular defendant might have used dishonesty or false statement in committing the particular crime.
ii) Automatic admission
Neither hearsay nor the balancing test (403) rule applies.

d. Time limit (609 (b))
The older the conviction, the less probative value it has.
After 10 yrs of conviction or release, whichever is the later date, it is inadmissible unless probative values substantially outweighing probative value & notice.
i) No distinction between felonies and crimen falsi

e. Methods
i) on X-X
The opposing attorney (usually the prosecutor) may ask the witness during cross-examination to admit the fact of the conviction.

When the witness is being cross-examined about previous conviction, the questions must be asked in good faith (i.e., with a reasonable belief as to the existence of the conviction).

ii) extrinsic evidence
The cross examiner may introduce a certified copy of the prior judgment. No foundation need to be laid.

f. Juvenile adjudications (FRE 609(d))
A general rule is that juvenile adjudications are not admissible.

g. Effect of a pardon (FRE 609(c))
The effect of a pardon depends on the reason for it.

h. Appeals (FRE 609(e))
The fact that the prior conviction is being appealed does not make the conviction inadmissible, but the fact can be disclosed to the jury.

Intro to the Federal Rules of Evidence - 40

2. Non-Convicted Bad Acts on X-X (FRE 608(b))

a. Probative of truthfulness/untruthfulness
A prior unconvicted bad act may come in only if it expressly bears on truthfulness.

b. Method
A prior bad act may be proved only through cross-examination, not through other extrinsic evidence (e.g., a second witness, documents). In other words, the cross-examiner must take the witness’ answer.

c. Self-incrimination
Where the accused takes the stand in his own defense and speaks on direct only about the present crime, as a constitutional matter, the accused does not waiver his right to claim the privilege when asked about prior bad acts that have nothing directly to do with the present charged offense and are relevant only to credibility.

d. Discretion of the judge
The court weighs the probative value of the evidence against the prejudice that results to the opposing party. The exercise of this discretion will rarely be reversed on appeal.

Intro to the Federal Rules of Evidence - 39

1. Character Evidence (FRE 608(a))
a. Methods
i) Opinion and reputation
A foundation must be laid showing that the character witness is acquainted with the principal witness’s reputation in the community (i.e., where the principal witness lives, works, or goes to school) or his personal relationship with the principal witness.
Reputation evidence must be related to the witness’s reputation in a neutral and generalized community.
ii) Specific instances
No extrinsic evidence permissible, but permissible on x-x.

Rationale: if the details of past lies were allowed, these details would be unduly prejudicial to D, and a lot of trial time would be used up while D’s counsel tried to show that D did not really lie on the prior occasions.

b. Limited admissibility
In conformity with FRE 105, the evidence may refer only to character of truthfulness (rehab.) or untruthfulness (impeachment).

c. Evidence of truthfulness
No bolstering until witness impeached.
It may be admitted only in rebuttal to evidence of untruthfulness.


EXAMPLE: compared to FRE 404.
The defense introduces evidence that the victim (who testified) is an untruthful person, or the prosecution introduces evidence the defendant (who testified) is an untruthful person.
Q (PROSECUTOR): Ms. Quigley, do you know the reputation for truthfulness of John Barnes, who testified earlier in this trial?
DEFENSE LAWYER: Objection, your honor. We didn’t open the door to this.
JUDGE: Overruled. Ms. Quigley, you may answer the question.
A: Yes.
Q: How have you come to know his reputation?
A: I’ve known him for years. He lives in my neighborhood, and the neighbors talk about him regularly.
Q: What is his reputation for truthfulness?
A: It’s bad. He’s known as someone whose word can’t be trusted.
Q: Why do the neighbors feel that way?
DEFENSE LAWYER: Objection. They’re trying to get into specific instances.
JUDGE: Sustained. Ask another question.

Intro to the Federal Rules of Evidence - 38

D. IMPEACHMENT
Impeachment of witness: to destroy W’s credibility showing mistaken or lying.

The FREs and case law recognize 7 categories of impeachment. The first five can be raised during cross-examination of lay witness.
1. Bias, interest, and motive (case law)
2. Prior inconsistent statement (FRE 613(b))
3. Contradictory facts (case law)
4. Prior convictions (FRE 609)
5. Prior bad acts (FRE 608(b))
6. Bad character for truthfulness (FRE 608(a))
7. Treaties (FRE 803(18): only during the X-X of experts.