Evidence Flashcards
(6 cards)
Impeachment of witnesses
Whether convictions should be admitted to impeach generally depends on the nature of the crime, the amount of time that has passed, and (only in criminal cases) whether the “witness” is the defendant. FED. R. EVID. 609(a). Under Rule 609(a), evidence of prior convictions may be admitted for the purpose of “attacking a witness’s character for truthfulness.” Id.
There are two basic types of convictions that can be admitted for the purpose of impeachment:
(1) convictions for crimes “punishable by death or by imprisonment for more than one year” (which generally correlates to “felonies”), FED. R. EVID. 609(a)(1); and
(2) convictions “for any crimes regardless of the punishment . . . if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” FED. R. EVID. 609(a)(2).
Pursuant to Rule 609(a)(1), in civil cases, the admission of evidence of a felony conviction is “subject to Rule 403 [which says that a court may exclude relevant evidence if its probative value is substantially outweighed by other factors].” FED. R. EVID. 609(a)(1). However, Rule 403 does not protect the witness against admission of prior convictions involving dishonesty—which must be admitted by the court. FED. R. EVID. 609(a)(2).
Finally, Federal Rule of Evidence 609(b) contains the presumption that a conviction that is more than 10 years old, or where more than 10 years has passed since the witness’s release from confinement (whichever is later), should not be admitted unless “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and the proponent has provided the adverse party with reasonable written notice. FED. R. EVID. 609(b).
Inmate’s 12 year felony
The inmate’s conviction for marijuana distribution was for a felony punishable by imprisonment for more than one year. See FED. R. EVID. 609(a)(1). Moreover, although the conviction was 12 years ago, the 10-year time limit of Rule 609(b) is not exceeded because that time limit runs from the date of either “the witness’s conviction or release from confinement for it, whichever is later.” FED. R. EVID. 609(b). Because the inmate served three years in prison, he was released from confinement nine years ago.
However, pursuant to Rule 609(a)(1), the admission of felony convictions to impeach a witness in a civil case is “subject to Rule 403.” FED. R. EVID. 609(a)(1). Neither Rule 609(a) nor the advisory committee notes specify which factors courts should consider when balancing the probative value of a conviction against the dangers identified in Rule 403 (which include (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) waste of time or undue delay, and (5) needless presentation of cumulative evidence). FED. R. EVID. 403.
Misdemeanor conviction
Rule 609(a)(2) provides that evidence of a criminal conviction “must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” FED. R. EVID. 609(a)(2). The inmate’s conviction for perjury would have necessarily required proving that the inmate engaged in an act of dishonesty. This conviction occurred within the past 10 years, so it “must be admitted” because, in contrast to Rule 609(a)(1) (discussed in Point One(a)), admission under Rule 609(a)(2) is mandatory and not subject to Rule 403.
Felony sexual assault
The inmate’s conviction for felony sexual assault was seven years ago, and he has not yet been released from incarceration, so Rule 609(a) but not 609(b) is applicable here. FED. R. EVID. 609(a). This conviction is therefore admissible to impeach the inmate, unless its probative value is substantially outweighed by the danger of unfair prejudice or any other Rule 403 concern. Id. Sex crimes are generally not considered relevant to credibility, see Hopkins v. State, 639 So. 2d 1247, 1254 (Miss. 1993), so the probative value of this conviction is relatively low. Moreover, the heinous nature of the inmate’s crime (sexual assault on his daughter) makes the danger of unfair prejudice to the inmate very high. Thus, the court should exclude evidence of the conviction because it was for a heinous offense that is likely to inflame the jury, and it has little bearing on credibility.
Cross-examine
The inmate wishes to cross-examine the guard about his prior dishonest behavior—lying on his résumé—that did not involve a criminal conviction. Rule 608(b) allows witnesses to be cross-examined about specific instances of prior non-conviction misconduct probative of untruthfulness “in order to attack . . . the witness’s character for truthfulness.” FED. R. EVID. 608(b).
The court’s decision to allow cross-examination about the guard’s prior dishonest behavior depends on the probative value of such evidence balanced against the danger of unfair prejudice to the guard or any other Rule 403 concern. FED. R. EVID. 403. Here, the guard’s false statement on his résumé that he obtained a degree in Criminal Justice is highly probative of his untruthfulness because it grossly misrepresents his actual academic record, was made recently, and was made with the intent to deceive. Because the probative value of this evidence is very strong and is not substantially outweighed by any Rule 403 concerns, cross-examination of the guard on this topic should be permitted. The court may also consider it fair to permit this cross-examination of the guard on these matters, assuming that one or more of the inmate’s prior convictions have been admitted impeaching his credibility
Extrinsic evidence
Although Rule 608(b) allows cross-examination about specific instances of prior misconduct probative of untruthfulness, “extrinsic evidence” offered to prove such misconduct is not admissible. FED. R. EVID. 608(b). The rationale for this rule is that allowing the introduction of extrinsic evidence of prior misconduct by witnesses, when these acts are relevant only to the witnesses’ truthfulness and not to the main issues in the case, would create too great a risk of confusing the jury and unduly delaying the trial. The court does not have discretion to admit this extrinsic evidence.
Here, the inmate’s counsel may cross-examine the guard about the false statement on his résumé. However, the inmate’s counsel must accept the guard’s response. Even if the guard denies wrongdoing or refuses to answer questions about the matter, the inmate’s counsel cannot introduce the guard’s résumé or the transcript from the local college to prove the guard’s misconduct.
