How FRE 609 Allows Impeachment With Prior Convictions

How FRE 609 Allows Impeachment With Prior Convictions

The Federal Rules of Evidence (FRE) contain various rules about what kind of evidence can be presented in federal court trials. One of these rules, FRE 609, specifically allows the admission of evidence of a witness’s prior convictions in order to attack their credibility. This is known as “impeachment by prior conviction.”

Basically, FRE 609 means that if a witness has been previously convicted of a crime, especially a crime involving dishonesty, the opposing attorney can bring this up in order to undermine the witness’s credibility. The idea is that someone who has committed crimes in the past, especially lying or fraud, might not be trustworthy on the witness stand either.

When Prior Convictions Can Be Used

FRE 609 establishes two different standards for using prior convictions depending on whether the witness is the criminal defendant or just a regular witness:

• For regular witnesses, felony convictions and convictions involving dishonesty or false statements are fair game to be brought up under FRE 609 regardless of how recent they are. The rationale is that this helps assess the witness’s credibility.
• For criminal defendants, prior felony convictions are admissible only if the probative value outweighs the prejudicial effect. Also, evidence of prior convictions cannot be brought up if more than 10 years have passed since the conviction or the defendant’s release from confinement, whichever is later.

So in other words, prosecutors have more leeway to bring up prior convictions of other witnesses, but face stricter limits on bringing up the defendant’s own criminal record. This balancing test is designed to avoid unfair prejudice from making the defendant look like a career criminal when that’s not specifically relevant to the case at hand.

How FRE 609 Gets Used in Court

The most common way FRE 609 gets used is when an attorney is cross-examining a witness and asks something like “Isn’t it true that you were convicted of wire fraud in 2009?” This immediately casts doubt on the witness’s honesty.

Defense attorneys also frequently use FRE 609 to undermine the credibility of key prosecution witnesses like police officers. For example, if a police officer witness has prior excessive force complaints or convictions, the defense attorney could impeach the officer’s testimony by bringing up their dubious past conduct. This doesn’t mean that the officer’s testimony has to be excluded, but it gives the jury a reason to doubt their credibility.

Requirements for Using Prior Convictions

While FRE 609 gives attorneys a lot of latitude to bring up prior convictions, there are some specific requirements that must be met:

• The conviction must be for an actual crime with all required elements – accusations, arrests, or parole violations don’t count.
• Minor infractions like traffic tickets or municipal code violations generally don’t count.
• Juvenile adjudications usually can’t be brought up.
• Details of the crime generally can’t be brought up – just the fact of conviction, the charge, and the punishment.
• Convictions can only be brought up on cross-examination, not during direct testimony.
• The attorney must have a good faith basis to believe the conviction exists – they can’t just go on a fishing expedition hoping to find dirt.

Additionally, judges have discretion under FRE 403 to exclude prior convictions if they find that the prejudicial effect substantially outweighs any probative value. So while FRE 609 swings the door open, FRE 403 acts as a counterweight to preserve fairness.

Strategic Uses of FRE 609

Beyond just attacking a witness’s credibility, skilled attorneys also use FRE 609 strategically for other advantages at trial, including:

• Plea Negotiations – Prosecutors may agree to drop or reduce charges to avoid creating future impeachment ammunition down the road under FRE 609.
• Witness Management – Attorneys prepare their own witnesses to get ahead of any convictions that could come up under FRE 609.
• Case Theory Selection – FRE 609 will guide attorneys toward fact patterns and defenses that minimize the impact of their client’s criminal record.
• Jury Persuasion – Skillful use of mugshots, fingerprints, and conviction details under FRE 609 can influence juror perceptions.

So in many cases, seasoned litigators don’t just blindly rely on FRE 609 by itself, but integrate it into their overall trial strategy. Both sides have to anticipate how prior convictions could sway the jury one way or the other.

What Types of Crimes Can Be Used?

While any felony is fair game for regular witnesses, FRE 609 singles out a few particular categories of crimes as especially relevant to credibility and thus exempt from the 10-year time limit that otherwise applies for defendants. These special categories include:

• Perjury or False Statement – The logic here is obvious: someone who lies under oath may lie again.
• Fraud or Deceit – Someone convicted of defrauding others clearly has issues telling the truth.
• Embezzlement – The theory here is that willingness to steal company funds evinces dishonest character.

So for any witnesses previously convicted of fraud, perjury, embezzlement or false statements, the conviction remains fair game for impeachment no matter how long ago it occurred. The implicit assumption is that these types of crimes directly undermine credibility regardless of when they happened.

That said, judges have considerable discretion to exclude even perjury or fraud convictions if they find the probative value is substantially outweighed by prejudice under FRE 403. So no prior conviction provides an automatic basis for impeachment—it just comes down to the judge’s trial management judgement.

Crimes NOT Involving Deceit

On the other hand, prior convictions for crimes not clearly involving deception may have minimal probative value in assessing witness credibility. Examples could include drug offenses, sex crimes, or crimes involving violence. The logic is that a propensity for violence, for example, doesn’t necessarily translate into willingness to lie under oath. There may still be some tangential relevance, but the prejudicial effect often predominates.

That said, creative attorneys can often find ways to argue that almost any prior conviction reflects on veracity in some way. So judges have to carefully weigh each conviction under FRE 403 before deciding whether to allow or exclude it. There are many grey areas here.

Impeaching Your Own Witness

An interesting wrinkle with FRE 609 is that technically attorneys can use it to impeach even their own friendly witnesses if they unexpectedly turn hostile. This avoids putting words in the witness’s mouth but allows extracting some benefit from their testimony.

By impeaching their own witness with prior convictions, the attorney signals to the jury not to trust them too much. This can deflate the impact of harmful testimony. So FRE 609 provides a safety valve allowing lawyers to attack their own witnesses’ credibility when necessary.

Example Cross-Examination Using Prior Convictions

To see FRE 609 in action, here is an example cross-examination of a prosecution eyewitness to a hypothetical robbery:

Defense Attorney: You testified earlier that you saw my client stealing a woman’s purse at night in the park, correct?

Witness: Yes, that’s right.

Defense Attorney: How far away were you when you witnessed this alleged crime?

Witness: About maybe 20 or 30 feet.

Defense Attorney: Now isn’t it true that you were convicted of felony check fraud back in 2015?

Witness: Um yes, unfortunately.

Defense Attorney: And that conviction was for knowingly writing bad checks?

Witness: Yes.

Defense Attorney: No further questions, your honor.

This skillful use of FRE 609 plants seeds of doubt about the witness’s honesty and eyesight while avoiding bullying a sympathetic victim. By exposing the felony fraud conviction, the defense attorney tarnishes the witness’s credibility without ever directly attacking them.

Balancing Probative Value Against Prejudice

While FRE 609 swings open the door to prior convictions, judges can put a stop to abusive uses that seem unduly prejudicial. Under FRE 403, the court has discretion to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”

For example, a 20-year-old felony fraud conviction may have little current bearing on the witness’s credibility. Hauling out their criminal past could unfairly divert attention from the real issues and lack any probative value. Excluding remote or minor convictions as prejudicial thus provides an important counterweight to FRE 609.

Factors Judges Consider

To balance probative value against prejudice, common factors judges consider include:

• – The impeachment value of the prior crime.
• – The date of the conviction and witness’s subsequent history.
• – The similarity between the past crime and charged crime.
• – The importance of the witness’s testimony.
• – The centrality of the credibility issue.

This multi-factor balancing test gives judges broad flexibility to allow impeachment when genuinely probative yet exclude misleading or distracting convictions. Reasonable minds can differ on where to draw the line in any given case.

Strategic Considerations

Skilled litigators use FRE 609 strategically, not just reflexively. Wise attorneys think carefully before opening the door to prior convictions, even if the rules technically allow it. Sometimes destroying a witness’s credibility comes at too high a cost.

And if the witness has multiple convictions, the attorney must strategically pick which ones to highlight and which to downplay. There are often tradeoffs to manage in determining which convictions will resonate most with the jury.

The risks of impeachment by prior conviction are especially acute for criminal defendants. Savvy defense lawyers may file motions in limine to exclude prejudicial convictions under FRE 403 or stipulate to sanitized descriptions of past crimes rather than letting the ugly details spill out.

Prosecutors must also tread carefully with FRE 609 and not let tunnel vision about the defendant’s criminal past distract from proving the current charges. There is often a tipping point where harping too much on convictions, no matter how damning, yields diminishing returns with the jury.

So FRE 609 should not be viewed as an unfettered license to attack every witness’s credibility. Counsel must thoughtfully weigh each conviction before pulling the trigger.

Conclusion

In summary, FRE 609 serves an important truth-seeking function by allowing impeachment of witness credibility using prior convictions. However, this rule also carries inherent risks of unfair prejudice. Balancing these competing concerns falls heavily on the trial judge’s shoulders.