Model Penal Code, Proposed Official Draft 306.6(3)(e) (1962), and discussion in A.L.I. (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. The Committee does not intend that the amendment will supercede other rules of admissibility or disclosure, such as the Jencks Act, 18 U.S.C. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and. endobj A paragraph was added to the Committee Note to state that the amendment does not affect the use of Rule 404(b) in civil cases. AppendPDF Pro 6.3 Linux 64 bit Aug 30 2019 Library 15.0.4 0000001512 00000 n
Federal Rules of Evidence - Rule 609 (through July 14, 2022) Crushed Rule Recent criminal convictions. The presumption of correctness which ought to attend judicial proceedings supports the position that pendency of an appeal does not preclude use of a conviction for impeachment. 6 0 obj But, before any impeachment of the witness's character for truthfulness by evidence of a criminal conviction can occur, you need to consider a number of things.First, do not overlook FRE 404! endobj (All exercises adapted from the Federal Rules of Evidence) QUESTIONS EXAMPLE: Rule 603. If more than 10 years have passed since the conviction or . Instead, the Committee opted for a generalized notice provision which requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts. On the rst day of trial, the District Court ruled that if Ohler tes- Law Revision Comm'n, Rep., Rec. The District Court denied the motion to admit the conviction as character evidence, but reserved ruling on whether the conviction could be used for impeachment purposes. See Rule 101(b)(6). See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 1963), and cases cited therein; McCormick 44, pp. & Studies, 657658 (1964). 1999) (admissibility of a prior inconsistent statement offered for impeachment is governed by Rules 402 and 403, not Rule 608(b)); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 609(a)(2). 2645 (2d ed. <>stream
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A situation of this kind is commonly referred to as character in issue. Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. The term credibility is also used in subdivision (a). F[q 251 0 obj The Committee considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging instrument. Recent criminal convictions are normally admissible for impeachment, even if appeals are pending, if the convictions required an element of dishonesty or the convictions were felonies. Finally, the amendment does not permit proof of the accused's character when the accused attacks the alleged victim's character as a witness under Rule 608 or 609. Proceedings 310 (1961). 0000004622 00000 n
260 0 obj While no specific provision in terms confers constitutional status on the right of an accused to take the stand in his own defense, the existence of the right is so completely recognized that a denial of it or substantial infringement upon it would surely be of due process dimensions. (Pub. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 1229, 14 L.Ed.2d 106 (1965), the Court held that allowing comment on the election of an accused not to testify exacted a constitutionally impermissible price, and so here. Other instances of borrowing are the Assimilative Crimes Act, making the state law of crimes applicable to the special territorial and maritime jurisdiction of the United States, 18 U.S.C. 756, 5 L.Ed.2d 783 (1961); McCormick 131; 8 Wigmore 2276 (McNaughton Rev. This conclusion was based upon a variety of circumstances. The amendment does not affect the admissibility of evidence of specific acts of uncharged misconduct offered for a purpose other than proving character under Rule 404(b). 1758; Bloch v. United States, 226 F.2d 185 (9th Cir. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. 868, 1 L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th Cir. A jury can be instructed to only use evidence to help determine a single fact and not draw inferences to other facts, for example. 608. 2 Prior to December 1, 2006 Rule 609(a)(2) stated: (a) General Rule. <>/Metadata 249 0 R/Outlines 208 0 R/Pages 246 0 R/StructTreeRoot 213 0 R/Type/Catalog/ViewerPreferences<>>> FED. This subdivision (b) applies if more than 10 years have passed since the witnesss conviction or release from confinement for it, whichever is later. 835 24 As to the use of specific instances on direct by an opinion witness, see the Advisory Committee's Note to Rule 405, supra. 609(A)(2) Jesse Schupack* Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence. at 249 (citing Fed. No inference should be derived from the fact that the Committee proposed an amendment to Rule 608(b) but not to Rules 609 and 610. FRE 412 (b) (1) (B) allows evidence of a victim's prior sexual conduct with the defendant only to prove consent. ), Notes of Advisory Committee on Proposed Rules. 262 0 obj 1865, supra, disqualifying jurors for conviction in state or federal court of crime punishable by imprisonment for more than one year. endstream If the witness denies having been convicted, the conviction may be established by public record. Rule 609. (2) Exceptions for a Defendant or Victim in a Criminal Case. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403). While its basis lies more in history and experience than in logic as underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. trailer When ruling in limine, the court may require the government to disclose to it the specifics of such evidence which the court must consider in determining admissibility. (2) Exceptions for a Defendant or Victim in a Criminal Case. ARTICLE I. And even under the modern practice, a common relaxation has allowed inquiry as to whether the witnesses would believe the principal witness under oath. Admittedly, however, the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. The term alleged is inserted before each reference to victim in the Rule, in order to provide consistency with Evidence Rule 412. The amendment makes clear that the accused cannot attack the alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. denied 337 U.S. 959, 69 S.Ct. [255 0 R 256 0 R 257 0 R 258 0 R 259 0 R 260 0 R 261 0 R 262 0 R] endobj Compare Fla. Stat. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403); United States v. Lindemann, 85 F.3d 1232 (7th Cir. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. While Rule 404(b) refers to the accused, the prosecution, and a criminal case, it does so only in the context of a notice requirement. The present rule develops that exception. <> xref 0000000016 00000 n
The language of Rule 404 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim. One issue where there is uncertainty among the federal courts is whether cross-examination under Rule . And in many criminal cases evidence of an accused's extrinsic acts is viewed as an important asset in the prosecution's case against an accused. 93650. 26, 2011, eff. <>/MediaBox[0 0 612 792]/Parent 247 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> 'wWG/giOu e9P0 U%-x(:tY%~@E@e:r@7TTW*h tKksS[#I@@~S&Lh>m9g.XTd. 258 0 obj Wigmore was outspoken in his condemnation of the disallowance of juvenile adjudications to impeach, especially when the witness is the complainant in a case of molesting a minor. (b) Specific Instances of Conduct. When attacking a witness's character for truthfulness by evidence of a criminal conviction. In addition, clarifications have been made to the text and headings. 1998). Notes of Conference Committee, House Report No. (b) Limit on Using the Evidence After 10 Years. 234, 13 L.Ed.2d 152 (1964). (a) In General. If, however, the pardon or other proceeding is hinged upon a showing of rehabilitation the situation is otherwise. Notes of Advisory Committee on Rules1987 Amendment. Rule 609(c) as submitted by the Court provided in part that evidence of a witness' prior conviction is not admissible to attack his credibility if the conviction was the subject of a pardon, annulment, or other equivalent procedure, based on a showing of rehabilitation, and the witness has not been convicted of a subsequent crime. A witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Check out the easy-to-follow flowchart as I explain every possible scenario and examples for an impeachment by prior conviction.Federal Rules of Evidence, Rule 609 is \"Impeachment by Evidence of a Criminal Conviction.\" Whether you're a law student preparing for a law school final exam or mock trial competition or whether you're a lawyer preparing for a jury trial, you need to understand how Rule 609 works. endobj See Ginter v. Northwestern Mut. 40 0 obj The Committee amended the Rule to emphasize the discretionary power of the court in permitting such testimony and deleted the reference to remoteness in time as being unnecessary and confusing (remoteness from time of trial or remoteness from the incident involved?). 0000001973 00000 n
There is little dissent from the general proposition that at least some crimes are relevant to credibility but much disagreement among the cases and commentators about which crimes are usable for this purpose. 251 21 Consistently with that rule, evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it. (b) Limit on Using the Evidence After 10 Years. <>3]/P 6 0 R/Pg 9 0 R/S/Link>> The amendment is consistent with the original intent of the Rule, which was to prohibit the circumstantial use of character evidence in civil cases, even where closely related to criminal charges. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. See also Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 627, 62930 (D. Ky.1984) (It seems beyond peradventure of doubt that the drafters of F.R.Evi. Ann 90.404 (2)(b) (written disclosure must describe uncharged misconduct with particularity required of an indictment or information). 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 year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. The request requirement has thus outlived any usefulness it may once have had. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403. 1990) (noting distinction between 404(b) evidence and intrinsic offense evidence).