federal rule of evidence 609 explained

uuid:291f0f55-b50a-11b2-0a00-40239a79fc7f Fla. Stat. The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness character for truthfulness. 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! <>stream 1 0 obj Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. See United States v. Burks, 470 F.2d 432, 4345 (D.C.Cir. 1997) (relying on the terms accused and prosecution in Rule 404(a) to conclude that the exceptions in subdivisions (a)(1) and (2) are inapplicable in civil cases). 'wWG/giOu e9P0 U%-x(:tY%~@E@e:r@7TTW*h tKksS[#I@@~S&Lh>m9g.XTd. The pretrial notice must be in writingwhich requirement is satisfied by notice in electronic form. FRE 609(a). xref 5 0 obj 1932; Mar. 756, 5 L.Ed.2d 783 (1961); McCormick 131; 8 Wigmore 2276 (McNaughton Rev. In such a case, the admissibility of evidence of the victim's sexual behavior and predisposition is governed by the more stringent provisions of Rule 412. See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. See also Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 43 0 obj In Rule 404(a) the general position is taken that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith, subject, however, to several exceptions, one of which is character evidence of a witness as bearing upon his credibility. There is no intent to change any result in any ruling on evidence admissibility. endobj A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial. The differences in the rules begin with Rule 103, which deals with rulings on the evidence. denied 350 U.S. 948, 76 S.Ct. [46 0 R 48 0 R 49 0 R 51 0 R 53 0 R 55 0 R 56 0 R 57 0 R 58 0 R 59 0 R 60 0 R] Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering or accepting . 258 0 obj <>/Metadata 2 0 R/Outlines 5 0 R/Pages 3 0 R/StructTreeRoot 6 0 R/Type/Catalog/ViewerPreferences<>>> This content and all of Law Venture's content is for informational purposes only. 868, 1 L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th Cir. 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. As a means of impeachment, evidence of conviction of crime is significant only because it stands as proof of the commission of the underlying criminal act. 473. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. 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. 0000001852 00000 n 1984) (Rule 608(b) limits the use of evidence designed to show that the witness has done things, unrelated to the suit being tried, that make him more or less believable per se); Ohio R.Evid. The request requirement has thus outlived any usefulness it may once have had. Notes of Committee on the Judiciary, House Report No. 0000008896 00000 n Rule 609. 1999). 24 0 obj 2, 1987, eff. Recent criminal convictions. 2 Prior to December 1, 2006 Rule 609(a)(2) stated: (a) General Rule. The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense. (C) do so in writing before trial or in any form during trial if the court, for good cause, excuses lack of pretrial notice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. (d) Juvenile Adjudications. <>/Border[0 0 0]/Contents(Masthead Logo Link)/Rect[265.3953 692.8047 265.3953 705.6953]/StructParent 2/Subtype/Link/Type/Annot>> 0000026192 00000 n 20 0 obj endobj 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. Model Penal Code, Proposed Official Draft 306.6(3)(e) (1962), and discussion in A.L.I. These changes are intended to be stylistic only. The Committee amended this language to read It may, however, be admissible, the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version. Rule 404(b) has been amended principally to impose additional notice requirements on the prosecution in a criminal case. 1534, 93 L.Ed. The only question relates to allowable methods of proof, as to which see Rule 405, immediately following. Nor is the amendment intended to redefine what evidence would otherwise be admissible under Rule 404(b). (2) Exceptions for a Defendant or Victim in a Criminal Case. 608. 3 0 obj See Advisory Committee Note to Rule 608(b) (stating that the Rule is [i]n conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is in issue in the case . xXnF}W,Dj#I DZZ[l$RwE[iqwv9m(UW`MA!Pn&)0"~5v^z~6K;x?@> %UGHYl&K.$7sZ7DC*S&(P&^K$_q E~W~a3i ]++Ggr1x_ V&Jz_cX7Q#(U(Y58RWF]s#]+r,Mw1FC D/s-m.RhdhlhckZF]Juj This is the view accepted by Congress in the 1970 amendment of 14305 of the District of Columbia Code, P.L. Federal Rule of Evidence 609 provides in pertinent part: (a) General Rule. (b) Limit on Using the Evidence After 10 Years. The second sentence of Rule 608(b) as submitted by the Court permitted specific instances of misconduct of a witness to be inquired into on cross-examination for the purpose of attacking his credibility, if probative of truthfulness or untruthfulness, and not remote in time. Notes of Advisory Committee on Rules1987 Amendment. <>2]/P 6 0 R/Pg 9 0 R/S/Link>> 0000004065 00000 n (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Rule 609 Impeachment by Evidence of a Criminal Conviction, 2015-2023 The National Court Rules Committee, Article III Presumptions in Civil Cases, Article VII Opinions and Expert Testimony, Article IX Authentication and Identification, Article X Contents of Writings, Recordings, and Photographs, Purchase the print edition of the 2022 Federal Rules of Evidence for $9.99, Rule 803 Exceptions to the Rule Against HearsayRegardless of Whether the Declarant Is Available as a Witness, Rule 801- Definitions That Apply to This Article; Exclusions from Hearsay, Rule 408 Compromise Offers and Negotiations, Rule 404 Character Evidence; Other Crimes, Wrongs or Acts. 1 Wigmore 196; 3 Id. endobj endobj 9495, n. 3. The court in its discretion may, under the facts, decide that the particular request or notice was not reasonable, either because of the lack of timeliness or completeness. Notes of Advisory Committee on Rules1988 Amendment. 256 0 obj (1) Prohibited Uses. 1865. FRE 609 Impeachment by Evidence of a Criminal Conviction evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. 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. 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. More This subdivision (b) applies if more than 10 years have passed since the witnesss conviction or release from confinement for it, whichever is later. ARTICLE I. 0000015065 00000 n 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. <>/Border[0 0 0]/Contents(Masthead Logo Link)/Rect[72.0 648.0 265.3953 707.5]/StructParent 1/Subtype/Link/Type/Annot>> 2 United States v. Walker, 313 F.2d 236 (6th Cir. <>/Border[0 0 0]/Contents( C a s e W e s t e r n \n R e s e r v e L a w R e v i e w)/Rect[293.2578 650.625 540.0 669.375]/StructParent 3/Subtype/Link/Type/Annot>> But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. _____________________________________________________________________** FREE Cheat sheet: 21 Trial Objection + BONUS: https://bit.ly/2ufpAXw The Objection Cheat Sheet has over 3,000 downloads! In Griffin v. California, 380 U.S. 609, 85 S.Ct. Pub. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. 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. See 28 U.S.C. Oct. 1, 1987; Apr. 609(a)(2). 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?). 0000015249 00000 n endobj ^9w5+VZq-\NG};n}{{9t hgO;z _^|+A4h{w}MU)O> Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. Rule 608 (b) is an explicit acknowledgement that every witness who testifies places their character for truthfulness or untruthfulness at issue. Any witnesss old felony conviction (or old conviction requiring an element of dishonesty) is only admissible if prejudicial risks are substantially outweighed by probative value, that probative value is supported by the specific circumstances, and you give opposing counsel reasonable, prior, written notice. McCormick 158, p. 334. 404(b) (no time limit). But the Committee found it unnecessary to substitute character for truthfulness for credibility in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character. Order 1. (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving or the witnesss admitting a dishonest act or false statement. The amendments are technical. 0000048822 00000 n The amendment also clarifies that evidence otherwise admissible under Rule 404(a)(2) may nonetheless be excluded in a criminal case involving sexual misconduct. See Ladd, Credibility TestsCurrent Trends, 89 U.Pa.L.Rev. endobj 0000017134 00000 n The earlier requirement that the prosecution provide notice of only the general nature of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act, but were eventually enacted as statutory law. 62 0 obj 25, 1988, eff. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. 1998). 0000003073 00000 n See Rules 609(b), 807, and 902(11). 793, 17 L.Ed.2d 737 (1967). R. Evid. xW[o6~l4(8"=(6hULkx~lm@"";w8>lx~th|e:; Rule 609 - Impeachment by Evidence of a Criminal Conviction (a) In General. 826 and 353 U.S. 959, 77 S.Ct. Requiring the notice to be in writing provides certainty and reduces arguments about whether notice was actually provided. If the witness is not a criminal defendant, the court cannot exclude the recent criminal conviction unless prejudicial risks substantially outweigh probative value. 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. For example, simple theft as compared with theft from interstate commerce. Rulings on Evidence Rule 104. The Rule also provides that "evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." Federal Rule of Evidence 609 (a)(2). .I*)alp{H'L}=A/:JtCAQJVCc_OfA#.X7 & 4C9'CHTJDgK3h+1aNGn$]h>c$ 9mFvCSF>$V0Z,dG\? See California Evidence Code 788. 44 0 obj 40 0 obj Rule 403. For the purpose of attacking the credibility of a witness (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment. See Ginter v. Northwestern Mut. 609(a)(1)). The rule recognizes discretion in the judge to effect an accommodation among these various factors by departing from the general principle of exclusion. <>/MediaBox[0 0 612 792]/Parent 3 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/StructParents 0/Tabs/S/Type/Page>> However, practical considerations of fairness and relevancy demand that some boundary be recognized. (Pub. 203 (S.D.N.Y. If the witness denies having been convicted, the conviction may be established by public record. What if the witnesss prior conviction was pardoned or annulled? Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adults conviction for that offense would be admissible to attack the adults credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. nor require the prosecution to disclose directly or indirectly the names and addresses of its witnesses, something it is currently not required to do under Federal Rule of Criminal Procedure 16. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. endobj %%EOF Current law does not allow the government to introduce negative character evidence as to the accused unless the accused introduces evidence of good character. Follow the method of analysis that we did for Rule 609 (a) of the Federal Rules of Evidence. When do the rules apply to impeachment by evidence of a criminal conviction. 30, 1991, eff. The enormous needless consumption of time which a contrary practice would entail justifies the limitation. Likewise, no specific form of notice is required. 2, 1987, eff. Federal Rule of Evidence 609 states in pertinent part: (a) In General. (C) in a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor. <>/Metadata 249 0 R/Outlines 208 0 R/Pages 246 0 R/StructTreeRoot 213 0 R/Type/Catalog/ViewerPreferences<>>> Proceedings 310 (1961). (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving or the witnesss admitting a dishonest act or false statement. endobj Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and. See McCormick 44. A stylistic change was also made to the last sentence of Rule 608(b). Scope; Definitions Rule 102. <>/P 33 0 R/S/Link>> 0000003164 00000 n It should be noted that the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. <>stream <> (b) Limit on Using the Evidence After 10 Years. The amendment is technical. United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. <> 1 404(a) explicitly intended that all character evidence, except where character is at issue was to be excluded in civil cases). See, e.g., Rule 412 (written motion of intent to offer evidence under rule), Rule 609 (written notice of intent to offer conviction older than 10 years), Rule 803(24) and 804(b)(5) (notice of intent to use residual hearsay exceptions). These changes are intended to be stylistic only. startxref 1982) (when a central issue in a case is close to one of a criminal nature, the exceptions to the Rule 404(a) ban on character evidence may be invoked), with SEC v. Towers Financial Corp., 966 F.Supp. There are, however, two exceptions: (1) specific instances are provable when they have been the subject of criminal conviction, and (2) specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness. 0000004821 00000 n See Michelson v. United States, 335 U.S. 469, 476 (1948) (The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.). startxref 1996) (notice given at trial due to good cause; the trial court properly made the witness available to the defendant before the bad act evidence was introduced); United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. Triers of fact apply Federal Rule of Evidence Rule 609 under the assumption that the rule is neutral. No substantive change is intended. Impeachment by Evidence of a Criminal Conviction (a) In General. endobj 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. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced. A similar provision is contained in California Evidence Code 788. The term credibility is also used in subdivision (a). Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. endobj c a s e . The amendment does not permit proof of the accused's character if the accused merely uses character evidence for a purpose other than to prove the alleged victim's propensity to act in a certain way. What if the witnesss prior conviction was, Unless you've disabled cookies on this device, you consent to cookies in accordance with our, In fact, if the witness is a criminal defendant, the court. JUDICIAL NOTICE Rule 201. %PDF-1.7 % Rather, it is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e. endobj No substantive change is intended. See United States v. Abel, 469 U.S. 45 (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 27, 2003, eff. <>1]/P 21 0 R/Pg 9 0 R/S/Link>> Although your committee sees no necessity in amending the rule itself, it anticipates that the use of the discretionary word may with respect to the admissibility of evidence of crimes, wrongs, or acts is not intended to confer any arbitrary discretion on the trial judge. K``p C#@@&.@q6 \@! NCBE, UBE, MBE, MEE, MPT, and MPRE are trademarks of the National Conference of Bar Examiners. Also, please note that the Federal Rules of Evidence (FRE) have not been formally adopted or I. These special aspects center upon impeachment by inconsistent statement, arise from factual differences which exist between the use of hearsay and an actual witness and also between various kinds of hearsay, and involve the question of applying to declarants the general rule disallowing evidence of an inconsistent statement to impeach a witness . It is believed that those espousing change have not met the burden of persuasion. Evidence of a juvenile adjudication is admissible under this rule only if: (2) the adjudication was of a witness other than the defendant; (3) an adults conviction for that offense would be admissible to attack the adults credibility; and. 257 0 obj Arguably, one of the most controversial rules is Rule 609, which deals with the admissibility of criminal convictions for the purpose of impeachment. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. 0000002826 00000 n In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as putting his character in issue), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (3) the character of a witness may be gone into as bearing on his credibility. 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. 0000004298 00000 n 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403). 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. The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. d;k.vWA _j@&m+U xn+d=OI}#+^ -UcML~DqD 7MrO*eq6ZI,d@1`rE @Q+5g7Zb>" 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. Appligent AppendPDF Pro 6.3 That requirement is not found in any other notice provision in the Federal Rules of Evidence. FED. L. 93595, 1, Jan. 2, 1975, 88 Stat. The Federal Rules of Evidence are a staple of American legal education. 1865, supra, disqualifying jurors for conviction in state or federal court of crime punishable by imprisonment for more than one year. Dec. 1, 1991; Apr. 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. 0000020976 00000 n By limiting the application of the Rule to proof of a witness character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403. 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. 1926, provided: "That the following rules shall take effect on the one hundred and eightieth day [July 1, 1975] beginning after the date of the enactment of this Act [Jan. 2, 1975].These rules apply to actions, cases, and proceedings brought after . Moreover, expanding concepts of character, which seem of necessity to extend into such areas as psychiatric evaluation and psychological testing, coupled with expanded admissibility, would open up such vistas of mental examinations as caused the Court concern in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. The Conference adopts the Senate amendment. prejudice, confusion or waste of time. No mechanical solution is offered. The language of Rule 608 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Few statutes recognize a time limit on impeachment by evidence of conviction. <>3]/P 6 0 R/Pg 9 0 R/S/Link>> <]/Prev 336330>> Dec. 1, 2000; Apr. McCormick 49; 4 Wigmore 1106, 1107. For purposes of impeachment, crimes are divided into two categories by the rule: (1) those of what is generally regarded as felony grade, without particular regard to the nature of the offense, and (2) those involving dishonesty or false statement, without regard to the grade of the offense. %%EOF Much of the force of the position of those favoring greater use of character evidence in civil cases is dissipated by their support of Uniform Rule 48 which excludes the evidence in negligence cases, where it could be expected to achieve its maximum usefulness.
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