CONVICTIONS » LawServer

1. Generally.
2. As Substantive Evidence.
§ 2(a). Convictions as Hearsay.
§ 2(b). Relevance.
§ 2(b)(i). Criminal Cases.
§ 2(b)(ii). Civil Cases.
§ 2(c). Conclusiveness.
§ 2(d). Codefendants’ Convictions.
3. Impeachment
§ 3(a). Types of Convictions Generally Admissible.
fs § 3(a)(i). Generally.
§ 3(a)(ii). Felonies.
§ 3(a)(iiii). Crimes Involving Dishonesty or False Statement.
§ 3(b). Types of Convictions Generally Inadmissible.
§ 3(b)(i). Generally.
§ 3(b)(ii). Juvenile Offenses.
§ 3(b)(iii). Pardon or Finding of Rehabilitation.
§ 3(c). Staleness
§ 3(d). Balancing Probative Value against Prejudice.
§ 3(d)(i). Party Prejudiced.
§ 3(d)(ii). Factors to Be Considered.
§ 3(d)(ii)(A). Nature of the Crime.
§ 3(d)(ii)(B). Remoteness in Time.
§ 3(e). Codefendants’ Convictions.
§ 3(f). Circumstances of Crime.
§ 3(g). Rehabilitation of Witness.
§ 3(h). Procedure.
§ 3(h)(i). Burden of Establishing Admissibility.
§ 3(h)(ii). Limiting Instruction.
§ 3(h)(iii). Stipulations.
§ 3(i). Appeal.
4. Proving a Conviction.
§ 4(a). Judicial Notice.
§ 4(b). Foundation.
5. Other Grounds for Exclusion.

1. Generally

This article deals with the evidentiary issues raised by criminal convictions, either as substantive evidence (§ 2) or as impeachment (§ 3). This article also discusses the foundation required to prove the existence of a conviction (§ 5). Additional authorities dealing with the admissibility of criminal convictions as "other bad acts" may be found under OTHER ACTS AND OCCURRENCES.

2. As Substantive Evidence

2(a). Convictions as Hearsay

Under the federal rules and in many states, felony criminal convictions are admissible in civil cases under an exception to the hearsay rule.{footnote}FRE 803(22); Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978); Cal. § 1300; Weichland v. Garlinger, 447 S.W.2d 606 (Ky. 1969); Burd v. Sussex Mutual Ins. Co., 267 A.2d 7 (N.J. 1970); Schindler v. Royal Ins. Co., 258 N.Y. 310 (1932). Contra Brooks v. State, 291 N.E.2d 559 (Ind. 1973).{/footnote}

[QUOTE RULE HERE]

Misdemeanor convictions are generally not admissible.{footnote}FRE 803(22); Gray v. Grayson, 414 P.2d 228 (N.M. 1966).
Check Thornton v. Paul, 74 Ill. 2d 132, 384 N.E.2d 335 (1978) (battery).{/footnote} Some states that do allow misdemeanor convictions into evidence exclude traffic offenses.{footnote}Hengels v. Gilski, 127 Ill. App. 3d 894, 469 N.E.2d 708 (1st Dist. 1984); Check Wright v. Stokes, 167 Ill. App. 3d 887, 522 N.E.2d 308 (5th Dist. 1988) (but plea of guilty admissible as party admission).
CHECK Thurmond v. Monroe, Illinois Supreme Court No. 74482 (May 19, 1994) (traffic conviction inadmissible to establish negligence).{/footnote}

2(b). Relevance

2(b)(i). Criminal Cases

Other crimes committed by the defendant are generally not admissible to show that defendant is a person of bad character, or has a propensity to commit criminal acts.{footnote}Massei v. United States, 241 F.2d 895 (1st Cir. 1957).
Smith v. United States, 392 A.2d 990 (D.C. 1978) (cross-examination as to prosecution witness’ juvenile convictions properly disallowed; defense did not state that purpose of evidence was show bias, but instead indicated purpose was to attack witness’ character as law-abiding citizen); State v. Dudley, 912 S.W.2d 525, 528 (Mo. App. 1995){/footnote} In some cases, however, proof of a prior conviction is required as an element of the crime charged, such as where the defendant is charged under a statute making it unlawful for a felon to possess a weapon.{footnote}United States v. Jones, 880 F.2d 55 (8th Cir. 1989).{/footnote} Convictions may also be admissible as "other bad acts" evidence, where they show knowledge, intent, a common modus operandi, or a continuing plan or scheme. See OTHER ACTS, TRANSACTIONS AND OCCURRENCES. Where offered for such a purpose, there is no "staleness" rule excluding convictions which occurred a certain number of years before trial, but admissibility of convictions remote in time is left to the trial court’s discretion.{footnote}Siglar v. United States, 208 F.2d 865 (5th Cir. 1954); United States v. Falco, 727 F.2d 659 (7th Cir. 1984).
Cf. Impeachment, below.
CHECK Cf. United States v. Justice, 431 F.2d 30 (5th Cir. 1970) (prior offenses must not be too remote in time from the offense charged); Check 88 ALR3d 8 (sex offenses).{/footnote}

2(b)(i). Civil Cases

Prior convictions of a party may also be admissible in civil cases for similar purposes as apply to criminal cases, such as to show knowledge, intent,{footnote} Kowalski v. Gagne, 914 F.2d 299 (1st Cir. 1990) (in a wrongful death case, defendant’s murder conviction arising from the same facts held prorerly considered in determining punitive damages).{/footnote} plan or scheme.{footnote}Warner v. Transamrica Ins. Co., 739 F.2d 1347 (8th Cir. 1984) (arson convictions admissible against insured claiming under insurance policy).

But see American Home Assur. Co. v. American President Lines, Ltd., 44 F.3d 774 (9th Cir. 1994) (guilty plea of surveyor inadmissible where immaterial to issues in case, and occurred 12 years earlier).
See OTHER ACTS OR OCCURENCES.{/footnote} In addition, a criminal conviction may be offered as proof of some other element of the plaintiff’s case{footnote}Ramon v. Farm Bureau Ins Co, 184 Mich. App. 54, 59-60; 457 N.W.2d 90 (1990) (insured’s arson conviction may be used to bar the insured’s recovery in a suit to determine insurance coverage).{/footnote} or the defendant’s defense,{footnote}See, e.g., Calusinski v. Kruger, 24 F.3d 931 (7th Cir. 1994) (in arrestee’s civil rights suit against police officers, arresstee’s state court conviction for resisting arrest admissible to show plaintiff resisted arrest); Williams v. Nebraska State Penitentiary, 57 F.3d 667 (8th Cir. 1995) (in inmate’s suit alleging prison’s failure to protect him from attack by inmate, plaintiff’s murder convictions admissible to the extent prison officials were aware of them, to show their assessment of risk to plaintiff).{/footnote} although such evidence is frequently excluded as irrelevant{footnote}Hurtt v. Stirone, 206 A.2d 624 (Pa.), cert. denied, 381 U.S. 925 (1965); Pennsylvania Turnpike Commission v. U.S. Fidelity & Guaranty Co., 194 A.2d 423 (Pa. 1963).
Kopf v. Skyrm, 993 F.2d 374 (4th Cir. 1993) (in suit against police for use of excessive force in making arrest, plaintiff’s ultimate conviction in related armed robbery criminal case held irrelevant).

Thurmond v. Monroe, Illinois Supreme Court No. 74482 (May 19, 1994) (traffic conviction inadmissible to establish negligence).{/footnote} or unduly prejudicial.{footnote}Hunnicutt v. Wright, 986 F.2d 119 (5th Cir. 1993) (in malpractice action, plaintiff’s criminal conviction and incarceration offered to show reason for delays in surgery).{/footnote}

2(c). Conclusiveness

Most courts view convictions as not being conclusive, but as mere evidence which may be rebutted.{footnote}Smith v. Andrews, 54 Ill. App. 2d 51, 203 N.E.2d 160 (2d Dist. 1965), cert. denied, 382 U.S. 1029 (rape conviction admissible but not conclusive on jury); Schindler v. Royal Ins. Co., 258 N.Y. 310 (1932).
But see Ramon v. Farm Bureau Ins Co, 184 Mich. App. 54, 59-60; 457 N.W.2d 90 (1990) (insured’s arson conviction may be used to bar the insured’s recovery in a suit to determine insurance coverage).
See generally Annotation, Unreversed Conviction As Conclusive In Action For Malicious Prosecution, 69 A.L.R. 1062 (19__).{/footnote} Some courts hold that felony convictions, but not misdemeanor convictions, are conclusive under res judicata principles.{footnote}Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 (1950).
~~CHECK~~ ~~Cal. Evid. Code~~ ~~§ 40834.~~{/footnote}

2(d). Codefendants’ Convictions

A codefendant’s criminal conviction is ordinarily not admissible as substantive evidence against other defendants on the issue of their guilt. Such evidence is admissible for other purposes, however, such as impeachment. See § 4. Impeachment Generally.
[In criminal cases, the government cannot introduce prior convictions against someone other than defendant except as impeachment.{footnote}FRE 803(22).{/footnote} ]

3. Competency of Witness

. Historically witnesses convicted of a felony were declared incompetent to testify.{footnote}John W. Strong, McCormick on Evidence § 42 (4th ed. 1992).{/footnote} "[T]he disqualification arose as part of the punishment for the crime, only later being rationalized on the basis that such a person was unworthy of belief."{footnote}3 J. Weinstein & M. Berger, Weinstein’s Evidence & 609[02], p. 609-58 (1988) (citing 2 J. Wigmore, Evidence § 519 (3d ed. 1940)).{/footnote} Witnesses are no longer disqualified from testifying merely because they have been convicted of a crime.{footnote}Rosen v. United States, 245 U.S. 467 (1917).
735 Ill. Comp. Stat. 5/8-101 (1995).
John W. Strong, McCormick on Evidence § 42 (4th ed. 1992).
See also COMPETENCY.
~~Check United States v. Mills, 597 F.2d 693 (9th Cir. 1979);~~
{/footnote}

4. Impeachment Generally

The common law rule barring felons from testifying has given way to the practice of permitting such witnesses to testify, but also permitting the adverse party to impeach a witness with his or her prior convictions. In addition, a defendant who gratuitously denies having previously committed any crimes may always be impeached by proof of convictions.{footnote}Williams v. Wainwright, 502 F.2d 1115 (5th Cir. 1974).
See also United States v. Clemente, 640 F.2d 1069, 1082 (2d Cir.), cert. denied, 454 U.S. 820 (1981) (defendant, a longshoremen’s union official, denied receiving loans by reason of his union position, government then impeached him with a prior conviction for receiving such a loan from a waterfront businessman).
3 D. Louisell & C. Mueller, Federal Evidence § 318, at 343 (1979) (this form of impeachment not governed by FRE 609).{/footnote}

The states are divided as to what types of crimes are admissible as impeachment, with some states allowing evidence of any crime at all,{footnote}Coslow v. State, 177 P.2d 518 (Okla. 1947).{/footnote} some only crimes of "moral turpitude" or "infamous" crimes,{footnote}State v. Jenness, 62 A.2d 867 (Me. 1948).{/footnote} others only crimes which involve dishonesty (crimen falsi),{footnote}Hawaii R. Evid. 609.{/footnote} and many allowing impeachment by conviction of any felony.{footnote}Cal. Evid. Code § 788.{/footnote}

In federal court, and in states following the federal rule,{footnote}See Knowles v. Panopoulos, 363 N.E.2d 805 (Ill. 1977) (adopting FRE 609 for civil cases); People v. Montogomery, 268 N.E.2d 695 (Ill. 1971 (adopting approach of FRE 609 for criminal cases).{/footnote} a witness may be impeached by a conviction of a felony or a crime involving "dishonesty or false statement."{footnote}FRE 609(a); United States v. Millings, 535 F.2d 121 (D.C. Cir. 1976).{/footnote} Convictions more than ten years old may be excluded as stale, however.{footnote}FRE 609(b). See § 4(a)(iv). Stale Convictions Inadmissible.{/footnote} FRE 609(a), as amended in 1990, provides:

General rule. — For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.{footnote}58 U.S.L.W. 3490 (Feb. 6, 1990) (amended FRE 609).{/footnote}

Many of the states adopting FRE 609 made material modifications.{footnote}3 D. Louisell & C. Mueller, Federal Evidence § 314, at 310 (1979).{/footnote}
It has been held that a corporation’s criminal convictions may be used to impeach officers, directors, or managing agents of the corporation.{footnote}Oklahoma v. Allied Materials Corp., 312 F. Supp. 130, 133 (W.D. Okla. 1968) (criminal antitrust charges admissible as impeachment in subsequent criminal case).
See also Comment, Using Prior Corporate Convictions to Impeach, 78 Calif. L. Rev. 1313 (1990).{/footnote}

4(a). Types of Convictions Admissible as Impeachment

4(a)(i). Felonies Generally

Federal courts and most states allow impeachment by conviction of any felony,{footnote}FRE 609(a).
See also Cal. Evid. Code § 788 (allowing admission of some felonies).{/footnote} on the theory that the commission of a felony is probative of a witness’ veracity:{footnote}NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 363 (5th Cir. 1978) ("When Congress adopted [FRE 609(a)] it determined that felonies . . . did bear on the credibility of witnesses."); United States v. Lipscomb, 702 F.2d 1049, 1062 (D.C. Cir. 1983) (in enacting FRE 609, Congress deemed that all felonies have some probative value on the issue of credibility).{/footnote}

[A]ll felonies have some probative value in determining a witness’ credibility upon the theory that a major crime entails such an injury to and disregard of the rights of other persons that it can reasonably be expected the witness will be untruthful if it is to his advantage. The perpetrator of a major criminal act has demonstrated such a lack of scruples as to show a willingness to give false testimony.{footnote}State v. Malloy, 639 P.2d 315, 317 (Ariz. 1981). {/footnote}

Whether the crime qualifies as a felony is determined according to the law of the jurisdiction of the conviction.{footnote}FRE 609(a).{/footnote} A felony is generally defined as any crime punishable by more than one year imprisonment.{footnote}United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976).

~~CHECK But see People v. Johnson, 154 Ill. App. 3d 301, 507 N.E.2d 179 (1st Dist. 1987) (sentences of court supervision and probation after pleading guilty are not convictions) [!???]~~{/footnote} The fact that a lesser sentence was actually imposed on the witness is irrelevent.{footnote}3 D. Louisell & C. Mueller, § 316, at 323.{/footnote} Under the federal rules, where the witness testifying is a criminal defendant, a felony not involving dishonesy may only be used to impeach the defendant if the court finds that the probative value exceeds the prejudicial effect.{footnote}FRE 609(a)(1). See § 3(c). Balancing Probative Value Against Prejudice.{/footnote}

4(a)(i)(A). Circumstances of Crime

Generally, in cases involving prior felony convictions, the prosecution need only come forward with the date, place, and nature of the prior conviction in order to satisfy its initial burden of showing probative value.{footnote}State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).{/footnote} Spme courts allow the length of the sentence to be introduced as impeachment as well.{footnote}United States v. Boyce, 611 F.2d 530, 530 (4th Cir. 1979) (per curiam); United States v. Barnes, 622 F.2d 107, 109 (5th Cir. 1980) (per curiam); United States v. Harding, 525 F.2d 84, 89 (7th Cir. 1975); United States v. Bogers, 635 F.2d 749, 751 (8th Cir. 1980); United States v. Wolf, 561 F.2d 1376, 1381 (10th Cir. 1977).
But see United States v. Tumblin, 551 F.2d 1001, 1004 (5th Cir. 1977) (defendant must give answers only as to the name of the felony and the date of conviction).{/footnote} The circumstances of the crime are ordinarily inadmissible.{footnote}United States v. Harding, 525 F.2d 84, 88-89 (7th Cir. 1975) (prosecutor could have brought out the fact that the police seized 80 pounds of marijuana from defendant, but it was plain error to inquire further into the details of the prior crime). United States v. Dow, 457 F.2d 246 (7th Cir. 1972); United States v. Wolf, 561 F.2d 1376 (10th Cir. 1977).{/footnote} Where, however, the witness attempts to give an exculpatory explanation of the circumstances of the prior conviction, he may be cross-examined on the subject.{footnote}United States v. Amahia, 825 F.2d 177 (8th Cir. 1987).{/footnote}

4(a)(ii). Crimes Involving Dishonesty or False Statement

Any crime involving dishonesty (crimen falsi), whether felony or misdemeanor, may be admitted as impeachment.{footnote}FRE 609(a)(2); Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d Cir. 1989) (forgery, passing bad checks); Petty v. Ideco, 761 F.2d 1146 (5th Cir. 1985) (check passing with intent to defraud); United States v. Morrow, 923 F.2d 427 (6th Cir. 1991); United States v. Jackson, 680 F.2d 561 (8th Cir. 1982) (transporting forged securities); United States v. Gellman, 677 F.2d 65 (11th Cir. 1982) (failure to file tax return).{/footnote} Crimes which have been held to meet this description include theft-forgery,{footnote}United States v. Newman, 849 F.2d 156, 163 (5th Cir. 1988).{/footnote} theft by deception,{footnote} United States v. Newman, 849 F.2d 156, 163 (5th Cir. 1988).{/footnote} making false and misleading statementts in the sale of securities,{footnote}United States v. O’Connor, 635 F.2d 814, 818-19 (10th Cir. 1980).{/footnote} transporting forged securities,{footnote}United States v. Jackson, 680 F.2d 561, 564 (8th Cir. 1982).{/footnote} making false claims to the government,{footnote}United States v. Wolf, 561 F.2d 1376, 1380 (10th Cir. 1977).{/footnote} failure to file a tax return,{footnote}United States v. Gellman, 677 F.2d 65, 66 (11th Cir. 1982).{/footnote} and knowingly issuing a bad check.{footnote}United States v. Mucci, 630 F.2d 737 (10th Cir. 1980).{/footnote} Many types of crimes have been held not to involve dishonesty,{footnote}CHECK United States v. Ashley, 569 F.2d 975 (5th Cir. 1978); {/footnote} including assault,{footnote}United States v. Hayes, 553 F.2d 824 (2d Cir. 1977).{/footnote} burglary,{footnote}United States v. Hayes, 553 F.2d 824 (2d Cir. 1977); United States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978).{/footnote} robbery,{footnote}United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982); United States v. Hayes, 553 F.2d 824 (2d Cir. 1977); United States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978); United States v. Smith, 551 F.2d 348, 362-65 (D.C. Cir. 1976).{/footnote} bank robbery,{footnote}United States v. Brackeen, 969 F.2d 827, 829-31 (9th Cir. 1992).{/footnote} theft,{footnote}United States v. Hayes, 553 F.2d 824 (2d Cir. 1977); Coursey v. Broadhurst, 888 F.2d 338, 342 (5th Cir.1989) (cattle theft); United States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978).{/footnote} petit larceny,{footnote}United States v. Elk, 682 F.2d 168, 170 n.3 (8th Cir. 1982); United States v. Fearwell, 595 F.2d 771, 775-77 (D.C. Cir. 1978).{/footnote} shoplifting,{footnote}United States v. Dorsey, 591 F.2d 922, 935-36 (D.C. Cir. 1978).{/footnote} unauthorized acquisition and possession of food stamps,{footnote}United States v. Mejia-Alarcon, 995 F.2d 982, 990 (10th Cir. 1993).{/footnote} drug smuggling,{footnote}United States v. Mehrmanesh, 689 F.2d 822, 833 (9th Cir. 1982). {/footnote} narcotics possession{footnote}United States v. Millings, 535 F.2d 121, 123 (D.C. Cir. 1976).{/footnote} or distribution,{footnote}United States v. Lewis, 626 F.2d 940, 946 (D.C. Cir. 1980).{/footnote} carrying an unlicensed weapon,{footnote}United States v. Millings, 535 F.2d 121, 123 (D.C. Cir. 1976).{/footnote} willful failure to file a tax return,{footnote}Cree v. Hatcher, 969 F.2d 34, 37-38 (3d Cir.), cert. dismissed, __U.S.__, 113 S.Ct. 1147, 121 L.Ed.2d 577 (1992).{/footnote} prostitution,{footnote}United States v. Walker, 613 F.2d 1349 (5th Cir. 1980).{/footnote} drunk driving.{footnote}United States v. Nichols, 808 F.2d 660 (8th Cir. 1987).{/footnote} Even where the elements of a crime do not involve dishonesty, however, a conviction may be admitted where the convicition rests on facts establishing dishonesty or a false statement.{footnote}United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982); United States v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867 (1977) United States v. Cathey, 591 F.2d 268, 276 n.16 (5th Cir. 1979); United States v. Papia, 560 F.2d 827, 847 (7th Cir. 1977); United States v. Elk, 682 F.2d 168, 170 n.3 (8th Cir. 1982); United States v. Mehrmanesh, 689 F.2d 822, 833 & n.13 (9th Cir. 1982); United States v. Whitman, 665 F.2d 313, 320 (10th Cir. 1981) (grand larceny conviction admissible because land fraud scheme involved); United States v. Lipscomb, 702 F.2d 1049 (U.S. App. D.C. 1983).
3 D. Louisell & C. Mueller, § 317, at 340.
See also United States v. Cunningham, 638 F.2d 696, 699 (4th Cir. 1981) (defense counsel failed to introduce facts to show that the prior misdemeanor conviction of a government witness involved dishonesty or false statement).
Contra 3 J. Weinstein & M. Berger, & 609[04], at 609-75 ("The statutory definition should control . . . [because] convenience requires a rather mechanical rule.") (footnote omitted).{/footnote}

4(a)(iii). Stale Convictions Inadmissible

Under the federal rules, a conviction more than ten years old (whether offered as a felony or as a crime involving dishonesty) is inadmissible unless the court determines based on "specific facts and circumstances" that the conviction’s probative value substantially outweighs the danger of unfair prejudice.{footnote}FRE 609(b); United States v. Cathey, 591 F.2d 268 (5th Cir. 1979); United States v. Spero, 625 F.2d 779 (8th Cir. 1980) (conviciction 22 years before held admissible); United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980); 43 ALR Fed. 398.
CHECK State v. Day, 577 P.2d 878 (N.M. 1978).
{/footnote} The rule provides:

(b) Time limit

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

The ten years are measured from the date of conviction or date of release from confinement, whichever is later.{footnote}FRE 609(b).
People v. Yost, 399 N.E.2d 1283 (Ill. 1980)
See also People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (1988) (where case is retried, ten years is measured to date of original trial); People v. Owens, 373 N.E.2d 848 (Ill. App. 1978) (where witness’s probation revoked, 10 years runs from date of release from confinement and not date of conviction).

Check 67 ALR3d 824; 88 ALR3d 8.{/footnote} Parties seeking to introduce convictions over ten years old must give written notice to the other side so that there will be an opportunity to challenge the evidence.{footnote}FRE 609(b). {/footnote} The effect of this rule is that convictions over ten years old are rarely admissible.{footnote}United States v. Cathey, 591 F.2d 268, 276 (5th Cir, 1979) (when witness has already been impeached by recent convictions, contradictions, and misstatements, no "exceptional circumstances" exist justifying admission of ten-year old convictions); U.S. v. Solomon, 686 F.2d 863, 873 (5th Cir. 1982) (no "exceptional circumstances" where witness already thoroughly impeached).{/footnote}

Even where a conviction is not excluded by virtue of these general staleness rules, its remoteness in time may be considered in the balancing test to determine whether its probative value is outweighed by the prejudicial effect. See § 3(d)(ii)(3), infra.

4(a)(iv). Juvenile Offenses

Courts generally do not allow a witness to be impeached by evidence of juvenile offenses.{footnote}Brown v. United States, 338 F.2d 543, 547-48 (1964).
Smith v. United States, 392 A.2d 990, 993 (D.C. 1978); Banas v. State, 149 N.W.2d 571 (Wis. 1966).
CHECK 63 A.L.R.3d 1107.{/footnote} Federal courts have the discretion, however, to allow such impeachment evidence in criminal cases where the witness is not the defendant and the evidence is necessary for a fair trial.{footnote}FRE 609(d); Davis v. Alaska, 415 U.S. 308 (1974) (interest in protecting confidentiality of juvenile records must give way to defendant’s Sixth Amendment Right to conduct effective cross-examination by showing a witness’ bias).
But see Smith v. United States, 392 A.2d 990 (D.C. 1978) (cross-examination as to prosecution witness’ juvenile convictions properly disallowed; defense did not state that purpose of evidence was show bias, but instead indicated purpose was to attack witness’ character as law-abiding citizen); Johnson v. United States, 537 A.2d 555 (D.C. 1988) (disclosure of juvenile record was held unnecessary when cross-examination about juvenile activity and motive was not curtailed).{/footnote} No such discretion exists in civil cases.{footnote}Powell v. Levit, 640 F.2d 239 (9th Cir. 1981).{/footnote} FRE 609 provides:

(d) Juvenile adjudications

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Courts have also held that a defendant’s character witness may not be impeached with the defendant’s juvenile adjudications.{footnote}McAdoo v. United States, 515 A.2d 412 (D.C. 1983) (but refusal to order mistrial upheld); State v. Holzworth, 651 P.2d 1255 (Mont. 1982).{/footnote}

4(a)(v). Pardon or Finding of Rehabilitation

In federal court, a conviction is inadmissible if it is subsequently the subject of a pardon,{footnote}Brown v. Frey, 889 F.2d 159 (8th Cir. 1989).{/footnote} annulment, certificate of rehabilitation, "or other equivalent procedure based on a finding of the rehabilitation of the person convicted,"{footnote}Smith v. Tidewater Marine Towing, inc., 927 F.2d 838, 840 (5th Cir. 1991) (Louisiana first-time-offender provision does not satisfy this rule); United States v. Wood, 943 F.2d 1048, 1055 (9th Cir. 1991) (statute permitting order withdrawing guilty plea and dismissal of charges insufficient to satisfy this rule); Wilson v. Attaway, 757 F.2d 1227, 1244 (11th Cir. 1985) (Georgia first-time-offender provision does not satisfy this rule{/footnote} unless the witness has subseqently been convicted of a felony.{footnote}FRE 609(c); United States v. Napoli, 557 F.2d 962 (2d Cir. 1977).

42 ALR Fed. 942.{/footnote} FRE 609 provides:

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, 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.

The fact that the executive branch has restored the witness’ civil rights is by itself irrelevant.{footnote}FRE 609(c). Check United States v. NiNapoli, 557 F.2d 962, 966 (2d Cir.), cert. denied, 434 U.S. 858, 98 S.Ct. 181, 54 L.Ed.2d 130 (1977).{/footnote} Most states allow convictions to be used regardless of any pardon.{footnote}See Richards v. United States, 192 F.2d 602 (D.C. Cir. 1951).
Contra Cal. Evid. Code § 788.{/footnote} Certain dispositions do not qualify as a “conviction”, however.{footnote}Marshall v. U.S., 623 A.2d 551, 555 and n. 4 (D.C. 1992) (sentence of “probation without judgment” followed by successful completion of probation and vacating of sentence not a "conviction” which could be used to impeach defendant).{/footnote}

4(a)(vi). Conviction Obtained in Violation of Constitutional Rights

Where the witness was denied one of his Sixth Amendment rights at the prior proceeding (the right to counsel, the right to confront the witnesses against him), the conviction obtained is inadmissible, even as impeachment.

4(a)(vii). Pendency or Possibility of an Appeal

Most jurisdictions allow convictions which are the subject of pending appeals to be used to impeach.{footnote}FRE 609(e) (“The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.”); FRE 803(22); United States v. Smith, 623 F.2d 627 (9th Cir. 1980).
16 ALR3d 726.
But see United States v. Oberlin, 718 F.2d 894 (9th Cir. 1983) (where defendant died pending appeal, conviction could not be used against the estate in civil case).{/footnote} The fact that an appeal is pending may be brought out by the other side.{footnote}FRE 609(e), 803(22).{/footnote}

4(b). Balancing Probative Value against Prejudice

The traditional rule is that factors which diminish the probative value of an otherwise admissible conviction merely go to the weight the evidence should be given by the trier of fact in determining credibility.{footnote}State v. Hawthorne, 228 A.2d 682 (N.J. 1967).{/footnote} Under FRE 609(a)(1) and its state counterparts, the court has a gate-keeping function with respect to felony convictions not involving dishonest or false statement: such convictions may only be admitted where the conviction’s probative value outweighs the prejudicial effect.{footnote}FRE 609 (a)(1).
See also People v. Beagle, 6 Cal. 3d 441 (1972); Ashby v. Price, 445 N.E.2d 438 (Ill. Ct. App. 1983) (probative value of plaintiff’s convictions of theft and possession of stolen goods outweighed by prejudicial impact in automobile accident case).{/footnote} Under the federal approach, the balancing requirement does not exist with respect to crimes involving dishonesty or false statement–such crimes are automatically admissible.{footnote}United States v. Wong, 703 F.2d 65 (3d Cir.), cert. denied, 104 S.Ct. 140 (1983); United States v. Toney, 615 F.2d 277 (5th Cir. 1980); United States v. Morrow, 923 F.2d 427 (6th Cir. 1991); United States v. Kuecker, 740 F.2d 496 (7th Cir. 1984); United States v. Lester, 749 F.2d 1116 (9th Cir. 1984); United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1979).
CHECK Contra People v. Spates, 395 N.E.2d 563 (Ill. 1979) (balancing test required for felony involving dishonesty); CHECK People v. Montgomery, 268 N.E.2d 695 (1971) (same).{/footnote} Such convictions may not be excluded under FRE 403.{footnote}United States v. Kiendra, 663 F.2d 349, 353-55 (1st Cir. 1981); United States v. Wong, 703 F. 2d 65 (3d Cir.) (per curiam), cert. denied, 464 U.S. 842 (1983); United States v. Toney, 615 F.2d 277 (5th Cir.), cert. denied, 449 U.S. 985 (1980); United States v. Kuecker, 740 F. 2d 496 (7th Cir. 1984); United States v. Leyva, 659 F.2d 118, 121-22 (9th Cir. 1981), cert. denied, 454 U.S. 1156 (1982).
Cleary § 43, at 95; 2 C. Wright, Federal Practice and Procedure § 416, p. 554 (1982); S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 366 (3d ed. 1982); Comment, The Interaction of Rules 609(a) (2) and 403 of the Federal Rules of Evidence: Can Evidence of a Prior Conviction Which Falls Within the Ambit of Rule 609(a) (2) Be Excluded by Rule 403?, 50 U. Cin. L. Rev. 380 (1981).{/footnote}

Where a balancing test is required, the trial court should make explicit factual findings to support its conclusion before admitting a witness’ prior conviction,{footnote}United States v. Oakes, 565 F.2d 170, 173 n.12) (1st Cir. 1977) (statement of reasons is "most helpful"); United States v. Fountain, 642 F.2d 1083, 1090 (7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v. Seamster, 568 F.2d 188, 191 n.3 (10th Cir. 1978) (explanation preferred).{/footnote} although this is not a required.{footnote}United States v. Grandmont, 680 F.2d 867, 873 (1st Cir. 1982) (Rule 609(a)(1) does not "require on-the-record balancing); United States v. Rosales, 680 F.2d 1304, 1306 (10th Cir. 1981) (explanation not a "requirement").{/footnote} Failure to do so is not reversible error, however, if the facts supporting that finding appear in the record.{footnote}United States v. Hayes, 553 F.2d 824, 828 (2d Cir.), cert. denied, 434 U.S. 867 (1977); Government of the Virgin Islands v. Bedford, 671 F.2d 758, 761 n.3 (3d Cir. 1982); United States v. Fountain, 642 F.2d 1083, 1090 (7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v. Bogers, 635 F.2d 749, 750 (8th Cir. 1980); United States v. Cook, 608 F.2d 1175, 1187 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 (1980); United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983) (explanation of the trial judge’s reasoning is important but may not always be essential).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).
CHECK But see People v. Jennings, 664 N.E.2d 699 (Ill. App. 1996).{/footnote}

4(b)(i). Party Prejudiced

A defendant who testifies on his own behalf at a criminal trial faces a more severe danger of unfair prejudice than any other type of witness, and therefore prior convictions are often excluded.{footnote}United States v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980) (factors include nature of th crime, the time of the conviction, the similarity of the prior crime to the crime charged, the importance of the defendant’s testimony, and the degree to which the defendant’s credibility is central to the case).{/footnote} Liberal allowance of impeachment through prior conviction would discourage defendants from testifying at all, even if they are innocent. See also MOTIONS–Motions to Exclude Evidence.

The original version of FRE 609 provided that the “prejudice” to be weighed was the “prejudicial effect to the defendant.” This language was construed as meaning that the balancing test set forth in the rule was applicable only to convictions offfered to impeach the defendant in a criminal case.{footnote}Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989); Linskey v. Hecker, 753 F. 2d 199, 201 (1st Cir. 1985).{/footnote} Thus, the balancing test was held inapplicable with respect to convictions offered to impeach prosecution witnesses in criminal cases, {footnote}Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989) (dictum); United States v. Nevitt, 563 F.2d 406 (9th Cir. 1977).{/footnote} and either party’s witnesses in a civil case,{footnote}Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989).{/footnote} even if the witness is a party.{footnote}Linskey v. Hecker, 753 F.2d 199 (1st Cir. 1985).{/footnote} Moreover, the balancing test of FRE 403 was held inapplicable in these contexts.{footnote}Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989){/footnote}

As amended in 1990, FRE 609(a) now provides, in pertinent part, “evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year. . . . ”

4(b)(ii). Factors to Be Considered

Where the court is required to balance the probative value of the conviction against the prejudicial effect, a number of factors have been held to be properly considered.

4(b)(ii)(A). Nature of the Crime

One factor to be considered is the prior conviction’s similarity to the crime charged.{footnote}United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985) (similarity to crime charged is one factor to be considered).{/footnote} A criminal defendant’s prior conviction may be excluded if it is too similar to the crime presently charged.{footnote}United States v. Hawley, 544 F.2d 50 (2d Cir. 1977); United States v. Isaac, 449 F.2d 1040 (D.C. Cir. 1971) (prior convictions for same crime should be admitted sparingly).
Dorman v. United States, 491 A.2d 455, 459 (D.C. 1984) (en banc); Bailey v. United States, 447 A.2d 779, 782 (D.C. 1982) ("The risk of jury misuse of prior conviction evidence is greatest when the crime charged and the crime used to impeach the defendant are similar").{/footnote} This is especially so where other convictions may be used to impeach the defendant which are for dissimilar crimes.{footnote}United States v. Isaac, 449 F.2d 1040 (D.C. Cir. 1971).
People v. Rist, 16 Cal. 3d 211 (1976).{/footnote} On the other hand, it is not per se unduly prejudicial to use a prior conviction of the same crime for impeachment purposes.{footnote}State v. Williams, 698 P.2d 678, 684 (Ariz. 1985).
See also People v. Allen, 215 A.D.2d 674; 628 N.Y.S.2d 139 (1995) (“The mere fact that the convictions were similar in nature to the instant offense does not warrant their preclusion.”){/footnote}

Crimes which do not necessarily reflect dishonesty are less likely to be admitted,{footnote}Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985) (“impeachment value” of conviction is one factor to be considered); People v. Allen, 215 A.D.2d 674; 628 N.Y.S.2d 139 (1995) (crimes involving larceny “especially probative” of defendant’s credibility).{/footnote} as are “impulse” crimes{footnote}United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983) (dictum).{/footnote} and crimes involving mere possession of narcotics{footnote}United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983) (dictum).{/footnote} or weapons.{footnote}United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983) (dictum).{/footnote}

4(b)(ii)(B). Remoteness in Time

Even where a conviction is not excluded by virtue of the general staleness rule, discussed supra, its remoteness in time may be considered in the balancing test to determine whether its probative value is outweighed by the prejudicial effect.{footnote}United States v. Hawley, 554 F.2d 50, 53 (2d Cir. 1977); United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983) (that robbery conviction was 8 years prior to trial reduced probatove value; admission held not to be abuse of discretion); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).{/footnote} A conviction which is many years old is less likely to be admitted, since its probative value is weakened by the passage of time.{footnote}Check United States v. Mahone, 537 F.2d 922 (7th Cir. 1976).{/footnote}

4(b)(ii)(C). Other Factors

Other factors which the courts have recognized as proper considerations include the witness’ age when convicted,{footnote}United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983).{/footnote} history since the prior conviction,{footnote}Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).{/footnote} the importance of the witness’ testimony,{footnote}State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).{/footnote} the importance of the witness’ credibility,{footnote}Jones v. Collier, 762 F.2d 71, 72 n.2 (8th Cir. 1985) ("[Where] credibility of the witnesses is all important, the trial court will not abuse its discretion by admitting . . . evidence [of prior convictions]."); United States v. Lipscomb, 702 F.2d 1049, 1071 (D.C. Cir. 1983).
State v. Williams, 698 P.2d 678, 683 (Ariz. 1985).{/footnote} and whether the defendant testified in his own defense to the prior charges.{footnote}United States v. Hayes, 553 F.2d 824, 828 (2d Cir.), cert. denied, 434 U.S. 867 (1977); Gordon v. United States, 383 F.2d 936, 940 n. 8 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968) (where defendant testified in his own defense to prior charges, "the jury’s verdict . . . is in a sense a de facto finding that the accused did not tell the truth when sworn to do so."){/footnote}

4(c). Codefendants’ Convictions

Where such evidence is admitted, a limiting instruction must be given to the jury.{footnote}Check United States v. Magee, 821 F.2d 234 (5th Cir. 1987); United States v. Austin, 786 F.2d 986 (10th Cir. 1986).

Check United States v. Roth, 736 F.2d 1222 (8th Cir. 1984) (no reversible error if instruction not requested).{/footnote} The government will not be allowed to call a witness and then impeach the witness with a prior conviction as a subterfuge for getting the conviction before the jury.{footnote}United States v. Peterman, 841 F.2d 1474 (10th Cir. 1988).
See also BRUTON RULE, THE; PLEADINGS AND PLEAS: Guilty Pleas.{/footnote}

4(d). Relative’s Conviction

A defense witness has been held properly impeached by the fact that a close family member has been convicted of a crime, for the purpose of showing bias.{footnote}United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840 (1983) (government properly impeached defendant’s wife with her brother’s unrelated conviction as evidence of bias).{/footnote}

4(e). Procedure

4(e)(i). Good Faith or Proof Required

A witness may not be impeached by cross-examining him or her about an alleged conviction unless there is a good faith basis for the question.{footnote}People v. Pratt, 759 P.2d 676, 684 (Colo. 1988) (dictum); People v. Robles, 514 P.2d 630, 631 (Colo. 1973) (prosecutor’s question regarding prior felony conviction which prosecutor knew did not exist held reversible error).{/footnote}

4(e)(ii). Burden of Establishing Admissibility

The burden is generally on the impeaching party to establish the admissibility of the offered conviction.{footnote}People v. Yost, 399 N.E.2d 1283 (Ill. 1980).{/footnote} Thus, in criminal cases where the prosecution is seeking to introduce a testifying defendant’s prior conviction, most courts place the burden of establishing the conviction’s admissibility on the prosecution.{footnote}E.g., State v. Williams, 698 P.2d 678, 682 (Ariz. 1985) (but burden of showing prejudice is on defendant).{/footnote} This includes the burden to show that the probative value of the conviction outweighs its prejudicial effect to the defendant.{footnote}United States v. Fountain, 642 F.2d 1083, 1092 (7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v. Cook, 608 F.2d 1175, 1187 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 (1980); United States v. Lipscomb, 702 F.2d 1049, 1063 (D.C. Cir. 1983).
Contra State v. Williams, 698 P.2d 678, 683 (Ariz. 1985); People v. Medreno, 425 N.E.2d 588 (Ill. App. 1981).{/footnote} When the defendant is seeking to introduce a prior conviction of a prosecution witness, the burden of establishing admissibility has been held to be the defendant’s.{footnote}United States v. Cunningham, 638 F.2d 696 (4th Cir. 1981).{/footnote} Some courts have held that where a balancing test is required, the burden is on

4(e)(iv). Limiting Instruction

The court must instruct the jury upon request of any party whose witness has been impeached that the conviction is to be considered only as impeachment evidence, and not as substantive evidence.{footnote}United States v. Halbert, 641 F.2d 1000 (9th Cir. 1981); United States v. Williams, 445 F.2d 421 (10th Cir. 1971).
See also Spencer v. Texas, 385 U.S. 554 (1967) (such limiting instructions are not unduly confusing for jurors).{/footnote} In some cases, it has been held that such an instruction must be given for the benefit of a criminal defendant even if the defendant neglects to request it.{footnote}Check United States v. Diaz, 585 F.2d 116 (5th Cir. 1978); United States v. Bobbitt, 450 F.2d 685 (D.C.Cir. 1971).
But see United States v. Bridwell, 583 F.2d 1135 (10th Cir. 1978) (where no instruction requested, conviction will be reversed only if plain error); United States v. McClain, 440 F.2d 241 (D.C. Cir. 1971) (waiver will be found only where failure to object was intentional tactical decision).{/footnote}

4(e)(v). Stipulations

The prosecution may sometimes be required to make certain stipulations as to a prior conviction, and may thus be precluded from introducing all the evidence it would like to.{footnote}United States v. Spletzer, 535 F.2d 950 (5th Cir. 1976).{/footnote} See also STIPULATIONS.

4(f). Rehabilitation of Witness

A witness who has been impeached with a prior criminal conviction may be rehabilitated with evidence of the witness’ truthfulness.{footnote}FRE 608(a). See also REHABILITATION; TRUTHFULNESS.{/footnote} In addition, some courts will allow the witness to explain the conviction.{footnote}United States v. Crisafi, 304 F.2d 803 (2d Cir. 1962); Wittenberg v. United States, 304 F. Supp. 744 (D.C Minn. 1969) (within trial court’s discretion to allow explanation).{/footnote}

4(g). Appeal

Where a criminal defendant moves to exclude a conviction as impeachment in the event he should take the stand, and the motion is denied, the denial may only raised on appeal if the defendant testifies and is impeached. See IMPEACHMENT § 4. Appeal. The decision whether to admit evidence of prior convictions for impeachment purposes is left to the sound discretion of the trial judge.{footnote}State v. Williams, 698 P.2d 678, 684 (Ariz. 1985).{/footnote} A trial court’s ruling will be distrubed only on a showing that the court abused its discretion.{footnote}United States v. Grandmont, 680 F.2d 867, 872 (1st Cir. 1982); United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.), cert. denied, 434 U.S. 897 (1977); United States v. Cunningham, 638 F.2d 696, 698 (4th Cir. 1981); United States v. Cathey, 591 F.2d 268, 274 n.11 (5th Cir. 1979); United States v. Jones, 647 F.2d 696, 700 (6th Cir.), cert. denied, 454 U.S. 898 (1981); United States v. Fountain, 642 F.2d 1083, 1092 (7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v. Foley, 683 F.2d 273, 278 (8th Cir. 1982); United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir. 1982); United States v. Rosales, 680 F.2d 1304, 1306 (10th Cir. 1981); United States v. Lipscomb, 702 F.2d 1049, 1068 (D.C. Cir. 1983).
State v. Williams, 698 P.2d 678, 684 (Ariz. 1985) (no abuse of discretion).{/footnote} The erroneous admission of a criminal defendant’s prior conviction will not be held reversible error where the error was harmless.{footnote}United States v. Green, 432 F.2d 551 (4th Cir. 1970) (applying “harmless beyond a reasonable doubt” standard).
See also APPEAL–Prejudicial versus Harmless Error. {/footnote}

5. Impeachment of Character Witnesses

Generally, a character witness may be impeached by asking the witness about past convictions of the person whose character is in issue if those convictions are relevant to the character trait in issue.{footnote}FRE 405(a); United States v. Wooden, 137 U.S. App. D.C. 1, 420 F.2d 251, 253 (D.C. Cir. 1969) (convictions for drunkenness not relevant to reputation for honesty, integrity and peacefulness; reversing conviction).{/footnote} It has been held impermissible to impeach a character witness with questions about juvenile adjudications.{footnote}McAdoo v. United States, 515 A.2d 412, 418 (D.C. 1986); Commonwealth v. Jenkins, 198 A.2d 497, 498 (Pa. 1964) (in murder trial, prosecution questions to witness as to whether she had heard defendant had been committed to a correctional institution as a juvenile for larceny held improper and reversible error).{/footnote} The questioner may bring out some of the facts of the crime.{footnote}Evans v. State, 757 S.W.2d 759, 760 (Tex. Crim. App. 1988) (in impeaching reputation witness with defendant’s murder conviction, prosecutor permitted to ask whether witness had heard that defendant murdered a child under fourteen).{/footnote} See CHARACTER 7. Impeachment of Character Witnesses. See also ARRESTS; AUDITS; INVESTIGATIONS; OTHER ACTS OR OCCURRENCES; PROSECUTION.

6. Proving a Conviction

6(a). Timing

Some courts have held that a criminal defendant cannot be cross-examined as to a prior conviction, and that the conviction may only be brought out as part of the prosecution’s rebuttal, through a public record of the conviction.{footnote}People v. Madison, 309 N.E.2d 11 (1974).{/footnote}

6(b). Judicial Notice

It has been held proper for a court presiding over a civil action to take judicial notice of a party’s criminal conviction on charges related to the civil case.{footnote}Kowalski v. Gagne, 914 F.2d 299 (1st Cir. 1990) (trial court in wrongful death action familiar with murder case through habeas action); Hirsch v. Arthur Anderson & Co., 72 F.3d 1085 (2d Cir. 1995) (guilty pleas relating to Ponzi scheme); Matter of American Biomaterials Corp., 954 F.2d 919 (3d Cir. 1992).

See also Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995), rehearing and suggestion for rehearing denied, cert. denied, African Enterprise, Inc. v. Scholes, 116 S.Ct. 673, 133 L.Ed.2d 522 (plea agreement).{/footnote}

6(b). Foundation

A conviction may be proven through a certified copy of the court record showing the conviction,{footnote}Commonwealth v. Willis, 719 S.W.2d 440 (1986) (same- to prove a prior DUI conviction, a certified copy of the prior judgment of conviction must be introduced, not simply a certified copy of driving history).Ill. 735 ILCS 5/8-101; People v. Roche, 59 N.E.2d 866 (Ill. 1945).{/footnote} through an admission by the witness,{footnote}FRE 609(a); MacKnight v. United States, 263 F. 832 (1st Cir. 1920); Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985).
State v. Williams, 698 P.2d 678, 682 (Ariz. 1985) (dictum); Ill. Rev. Stat. ch. 110, & 8-101 (civil cases; witness may be compelled to answer as to prior conviction); Ill. Rev. Stat. ch. 38, & 155-1 (criminal cases; prior conviction of defendant should be proven through record of conviction; defendant cannot be compelled to testify as to prior conviction).{/footnote} through the testimony of a witness with knowledge of the conviction,{footnote}Ill. Rev. Stat. ch. 110, & 8-101.{/footnote} or through other evidence.{footnote}Ill. Rev. Stat. ch. 110, & 8-101.
See generally 3 Am.Jur. Proof of Facts 405, Conviction of Crime.{/footnote} In some states, only a certified copy of the judgment will suffice unless one is shown to be unavailable.{footnote}McIntyre v. State, 463 S.E.2d 476, 480 (Ga. 1995) (best evidence rule requires that prior conviction be proved by certified copy); State v. Samonte, 928 P.2d 1, 33 (Hawaii 1996) (judgment itself or authenticated copy required; “Where the party seeking to prove a prior conviction has failed to show the unavailability of the judgment or a certified copy thereof, other evidence of conviction would not be competent to prove such prior conviction beyond a reasonable doubt”).
See also State v. Buffalo, 674 P.2d 1014, 1017 (Haw. Ct. App. 1983) (prosecution failed to prove defendant’s prior felony conviction in California by submitting an "abstract of judgment" from California, which "was merely a device by which the execution of the order of probation or judgment of imprisonment was carried out."), cert. denied, 744 P.2d 781 (Haw. 1984).{/footnote} Where a witness denies being convicted, most courts require some proof that the person named in the court record is the same as the person involved in the case.{footnote}E.g., Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364 (1st Cir. 1991) (sufficient proof where both graduated from same college in same year, and both involved in same business involving same property within same time period).{/footnote} Some states, however, recognize a presumption that the two are the same person.{footnote}3 A.L.R.3d 965. See also NAMES–Presumption of Identity.{/footnote}

7. Other Grounds for Exclusion

Convictions obtained through a plea of nolo contendere are admissible as impeachment,{footnote}Pfotzer v. Aqua Systems, Inc., 162 F. 2d 779, 785 (2d Cir. 1947) (allowing impeachment of a civil antitrust defendant by evidence of a nolo contendere plea); United States v. Williams, 642 F.2d 136 (5th Cir. 1981); United States v. Lipscomb, 702 F.2d 1049, 1070 (D.C. Cir. 1983) (even if defendant’s Alford plea were considered equivalent of nolo condere plea, a nolo condere plea is admissible; preliminary draft of FRE 609 excluded pleas of nolo contendere but this language was later deleted).{/footnote} as are convictions resulting from Alford pleas.{footnote}United States v. Lipscomb, 702 F.2d 1049, 1070 (D.C. Cir. 1983).{/footnote} See also NOLO CONTENDERED; PLEADINGS AND PLEAS.

Admissibility of Expunged Conviction{footnote}82 ALR4th 913.{/footnote}

Bibliography

Imwinkelried, Uncharged Misconduct Evidence
Beaver & Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 Temp. L.Q. 585 (1985)
Betro, The Use of Prior Convictions to Impeach Criminal Defendants – Do the Risks Outweigh the Benefits?, 4 Antioch L.J. 211 (1986)
Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Fordham L. Rev. 1 (1988)
Friedman, Character Impeachment Evidence: Psycho-Bayesian !? Analysis and a Proposed Overhaul, 38 UCLA L. Rev. 637 (1991)
Glick, Impeachment by Prior Convictions: A Critique of Rule 6-09 of the Proposed Rules of Evidence for U.S. District Courts, 6 Crim. L. Bull. 330 (1970)
Gold, Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, 15 Cardozo L. Rev. 2295 (1994).
McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Law & Soc. Ord. 1
Nichol, Prior Crime Impeachment of Criminal Defendants: A Constitutional Analysis of Rule 609, 82 W. Va. L. Rev. 391 (1980)
Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135 (1989)
Smith, Impeaching the Merits: Rule 609(a)(1) and Civil Plaintiffs, 13 N. Ky. L. Rev. 441 (1987)
Spector, Impeaching the Defendant by His Prior Convictions and the Proposed Federal Rules of Evidence: A Half Step Forward and Three Steps Backward, 1 Loy. U. Chi. L.J. 247 (1970).
Spector, Rule 609: A Last Plea for Its Withdrawal, 32 Okla. L. Rev. 334 (1979).
Wissler & Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt, 9 Law & Hum. Behav. 37 (1985).

Comment, Using Prior Corporate Convictions to Impeach, 78 Calif. L. Rev. 1313 (1990).
Comment, The Interaction of Rules 609(a) (2) and 403 of the Federal Rules of Evidence: Can Evidence of a Prior Conviction Which Falls Within the Ambit of Rule 609(a) (2) Be Excluded by Rule 403?, 50 U. Cin. L. Rev. 380 (1981).