Also known as: FRE 609 · Fed. R. Evid. 609 · Rule 609 · impeachment by prior conviction
Written by attorneys — see sources below.
A rule of evidence permitting a party to attack a witness's character for truthfulness with evidence of a criminal conviction. The rule distinguishes between convictions involving dishonesty or false statement, which are automatically admissible, and other felonies, which are admissible only after balancing probative value against prejudice, with a more protective standard when the witness is a criminal defendant. Older convictions face stricter requirements including notice and a heightened balancing test, while certain pardons, annulments, and certificates of rehabilitation trigger categorical exclusion.
During cross-examination of a government witness in a retaliation suit, counsel attempted to introduce a military conviction for false vouchers through a third-party witness rather than questioning the convicted individual directly. The court sustained an objection because extrinsic evidence of the specific instance could not be used to prove the conduct when the conviction itself was not offered under the proper impeachment rule.
Defense counsel asked a cooperating witness about another person's criminal record to suggest untrustworthiness. The prosecutor objected that the inquiry improperly sought to impeach the absent individual through a third party, and the court ruled the questions outside the scope of proper conviction impeachment.
After the trial court ruled in limine that a prior drug conviction would be admissible to impeach the defendant if she testified, she preemptively admitted the conviction on direct examination. On appeal she could not challenge the in limine ruling because she had introduced the evidence herself.
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View caseA defendant moved in limine to exclude a prior conviction but elected not to testify after the motion was denied. The appellate court refused to review the ruling because the defendant never took the stand and therefore suffered no impeachment from the conviction.
Petitioner Luce was indicted on charges of conspiracy and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, Luce moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by Luce that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime—possession of a controlled substance. The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of Luce's trial testimony could affect the court's specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if Luce limited his testimony to explaining his attempt to flee from the arresting officers, but if he took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Luce did not testify, and the jury returned guilty verdicts. The United States Court of Appeals for the Sixth Circuit affirmed. The Court of Appeals refused to consider Luce's contention that the District Court abused its discretion in denying the motion in limine without making an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect. The Court of Appeals held that when the defendant does not testify, the court will not review the District Court's in limine ruling. Some other Circuits have permitted review in similar situations. The Supreme Court granted certiorari to resolve the conflict.
The government introduced evidence that a defense witness and the defendant both belonged to a prison gang whose members were expected to testify favorably for one another. The court held the evidence admissible to show bias even though it did not involve a conviction.
In a civil cargo-damage trial, counsel sought to impeach a longshoreman with a five-year-old juvenile adjudication for cargo theft. The court excluded the adjudication because juvenile records are generally inadmissible for impeachment in civil cases.
Reasonable written notice of intent to use the conviction must be given so the adverse party has a fair opportunity to contest its use. A pretrial motion that describes the conviction in detail but never states an intent to offer it for impeachment fails to satisfy the requirement.
Evidence of a conviction is inadmissible if it has been the subject of a certificate of rehabilitation based on a finding that the person has been rehabilitated and the person has not been convicted of a later crime punishable by more than one year in prison.
…conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the…
…in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609
…Luce v. United States , 469 U.S. 38 (1984), which recognized that any possible harm flowing from an in limine ruling permitting impeachment by prior conviction is speculative until the Government chooses to exercise its option to elicit the testimony. Only when the Government actually uses the
For a felony conviction used against a testifying criminal defendant, the conviction is admissible only if its probative value on credibility outweighs its prejudicial effect to the defendant. This standard is more protective than the ordinary Rule 403 test applied to other witnesses.
A pardon based on rehabilitation bars admission unless the witness has a later conviction punishable by more than one year of imprisonment. The maximum sentence authorized by statute, not the actual sentence imposed, determines whether the later-crime exception applies.
Any conviction whose elements required proof or admission of a dishonest act or false statement must be admitted regardless of the length of punishment authorized and without further balancing.