Evidence of a Criminal Conviction

Evidence of a criminal conviction is admissible, subject to five rules from FRE 609:

  1. If punishable by more than a year, it is admissible in civil cases or criminal cases where the witness is not a defendant subject only to FRE 403.
  2. If punishable by more than a year, it is admissible in criminal cases where the witness is a defendant unless its prejudicial effect to that defendant outweighs the probative value of the evidence. (It does not have to be substantially outweighed.)
  3. If the crime involved a dishonest act as an element, it should be admitted regardless of the punishment therefor.
    • such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.
  4. If the conviction or release was more than ten years ago (whichever is later), its probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. (Reverse of FRE 403)
    • Reconfinement for parole violations counts as imprisonment for the original conviction.
    • The five factors from Brewer are used in a balancing test to determine admissibility:
      1. The nature of the crime (Its bearing on honesty and veracity)
      2. The time of conviction and the witness's subsequent history
      3. Similarity between the past crime and the charged crime
        • Cuts against admissibility, as it increases the risk of unfair prejudice
      4. Importance of defendant's testimony
        • Cuts against admissibility of the crime, as the defendant should be allowed to testify freely in his defense
      5. The centrality of the credibility issue
        • Cuts towards admissibility
    • If the defense brings up a crime, he loses the right to appeal the crime's admissibility, even if the judge had issued a motion allowing it already.
  5. Evidence of a juvenile adjudication is admissible only if it is in a criminal case, the adjudication was of a witness other than the defendant, an adult’s conviction for that offense would be admissible to attack the adult’s credibility, and admitting the evidence is necessary to fairly determine guilt or innocence.