WOULD YOU BUY A USED CAR FROM THIS PERSON? PRIOR CRIMINAL CONVICTIONS
Final convictions for felonies or misdemeanors involving moral turpitude, which are not too remote in time, may be admitted to impeach a testifying witness (including the criminal defendant).
FED. R. EVID Rule 608 provides that:
“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record” during cross-examination but only if the crime:
- Was punishable be death or imprisonment in excess of one year … and the court determines that he probative value of admitting this evidence out-weighs its prejudicial effect to the defendant, or
- Involved dishonesty or false statement, regardless of the ”
A. Remoteness.
FED. R. EVID Rule 609(b) provides that a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction, or release from confinement whichever is later. However, the proponent of said evidence, upon notice and a fair opportunity to contest its admission, may proffer and the court may admit the same where it determines that its probative value outweighs its prejudicial effect.
B. Finality of Conviction.
DISTINCTION BETWEEN STATE AND FEDERAL RULE
State: In Texas for example only final convictions, not on appeal, are admissible for impeachment purposes.
Miller v. State, 472 S.W.2d 261 (Tex.Cr.App. 1971).
Cf Poore v. State, 524 S.W.2d 294 (Tex.Cr.App. 1975) (burden on party offering the witness to show conviction not final.)
- Federal: R. EVID Rule 609(e) provides that the “pendency of an appeal . . . does not render evidence of a conviction inadmissible” although “the pendency of [that] appeal is admissible.”
U.S. v. Rose, 526 F.2d 745 (8th Cir. 1975).
C. Details of Offense are Inadmissible.
Tucker v. U.S., 409 F.2d 1291 (5th Cir. 1969).
U.S. v. Bray, 445 F.2d 178, 182 (5th Cir. 1971).
D. Pardon, Annulment or Certificate of Rehabilitation.
DISTINCTION BETWEEN STATE AND FEDERAL
State: In Texas for example, if the sentence was suspended and then set aside or probation was granted and the term was successfully completed then the conviction is not admissible for impeachment Tex.Crim. R. Ev. 609.
However, a pardon does not render a prior conviction inadmissible for impeachment purposes.
Sipanek v. State, 272 S.W.2d 508 (Tex.Cr.App. 1925);
Jones v. State, 147 S.W.2d 508 (Tex.Cr.App. 1941). Unless such pardon is premised upon proof of innocence. Logan v. State, 448 S.W.2d 462 (Tex.Cr.App. 1970).
Federal: R. EVID Rule 609(c) provides that a prior conviction is not admissible for impeachment purposes where:
“(1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure … and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or
(2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
U.S. v. Wiggins, 566 F.2d 944 (5th Cir. 1978) (defendant apparently has obligation of showing that his release [e.g. from “half-way house” amounted to a finding of rehabilitation”]).
