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Evidence Part 4: Excerpt from Federal Rules of Evidence with Objections

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federalRulesWithObjectionsTaken from Federal Rules of Evidence with Objections, Tenth Edition by Anthony J. Bocchino and David A. Sonenshein. © 2011 by the National Institute for Trial Advocacy.

Impeachment
Prior Convictions
(Criminal Cases)

Objections

[Where offered against any witness other than the criminal defendant] I object. The conviction offered to impeach is neither for a crime that carries a penalty of at least one year in prison or death nor for a crime of dishonesty or false statement. Even if the conviction offered to impeach is for a felony, the prejudicial effect to a party substantially outweighs the probative value of the conviction on the issue of the credibility of the witness.

• I object. The date of the proffered conviction and the witness’s release date from his sentence occurred more than ten years ago; and

» written notice has not been given; and/or

» the probative value of admitting the conviction on the issue of credibility does not substantially outweigh the prejudice to a party.

[Where offered against the criminal defendant] I object to the introduction of this conviction because the probative value of the proffered conviction on the issue of credibility does not outweigh the prejudice to the defendant.

Responses

[Where offered against any witness other than the criminal defendant] The proffered conviction is for a Rule 609(a)(1) crime, and its prejudicial effect to any party in the case does not substantially outweigh its probative value on the issue of the credibility of the witness.

[Where offered against the criminal defendant] The proffered conviction is for a Rule 609(a)(1) crime, and its probative value does outweigh the prejudicial effect to the defendant.

• The proffered conviction is for activity involving dishonesty or false statement.

• Though the proffered conviction and the witness’s release date occurred longer than ten years ago,

» written notice has been given; and

» the probative value of the conviction on the issue of the witness’s credibility substantially outweighs any purported prejudice.

Cross Reference to Federal Rule 609(a)–(e)

Explanation

As with the use of convictions for impeachment in civil cases, Rule 609 in criminal cases dispenses with any balancing of probative value against prejudice in the offer of a conviction for a crime of dishonesty or false statement. Thus, such convictions must be admitted against any witness, including a criminal defendant. Where, however, a criminal defendant would be impeached with a conviction for a crime that carries a penalty of at least one year in prison that does not involve dishonesty or false statement, Rule 609(a)(1)(B) requires the court to perform a balance that is different from Rule 403 balance and tilts away from admissibility. Such conviction will only be admitted against a criminal defendant where the court finds that the probative value of the conviction on the defendant’s credibility outweighs the prejudice to the defendant. The obvious prejudice to a criminal defendant lies in the jury’s inclination to find a defendant guilty of the crime charged because of his prior record. Arguably, the similarity between the charged offense and the prior conviction magnifies the prejudicial impact of the prior conviction because of the jury’s almost inevitable sense that one who once committed a particular sort of offense is likely to commit a similar offense again. Whatever the commonsense likelihood of such a notion, it is an impermissible inference for a fact finder to make.

The term “dishonest act or false statement” includes crimes that required proof or admission of an act of dishonesty or false statement to establish the elements of the crime by the witness who is being impeached.

According to the Advisory Note, “[o]rdinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of judgment, . . . a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions” in order to demonstrate that proof of an act of dishonesty or false statement was required for conviction. A witness in a criminal case, other than the criminal defendant, is treated like a witness in a civil case for purposes of Rule 609(a), and impeachment of witnesses may be excluded on Rule 403 grounds.

This books is available in print and E-book formats.

Get a printed copy of Federal Rules of Evidence with Objections here.

Get the E-book for iTunes here.

Get your Kindle edition from Amazon here.

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