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.