Impeaching Witnesses with Prior Convictions

1
Impeaching Witnesses withPrior Convictions
A Presentation to the Military Law Section of the
State Bar of Texas, 26 June 2009, in Dallas

• Robert F. Holland
• Colonel, US Army (Ret.)
• Assoc. Prof. of Law
• South Texas College of Law, Houston

2
Our Focus Today

• Similarities Differences between
• Texas Rule of Evid 609
• Federal Rule of Evid 609
• Military Rule of Evid 609

3
Background

• Theory
• Showing that a witness has a prior conviction
  (PC) suggests his untruthfulness now, while
  testifying
• However, 609 does not regulate
• use of PC to contradict W (as when W opens
  door), or
• use of PC to show Ws bias or motive

4
Similarities of the Three Jurisdictions

• Juvenile adjudications usually dont count as
  PCs
• General approach recognizes tension between (a)
  legitimate value as indicator of Ws
  untruthfulness in past, (b) the potential to
  unfairly sidetrack jurors
• PCs more than 10 yrs old are disfavored.

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General Approach in All Three Jurisdictions

• To be admitted as 609 impeachment, a PC must
• Fall within specific categories of convictions
• Meet some form of balancing test

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PC Types Balancing Testsregular (non-Def)
Witn, PC lt 10 yrs old
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Rule 403, Fed Mil Rules of Evid

• Exclusion of Relevant Evidence on Grounds of
  Prejudice, Confusion, or Waste of Time
• Altho relevant, evidence may be excluded if its
  probative value is substantially outweighed by
• the danger of unfair prejudice, confusion of the
  issues, or misleading the jury,
• or by considerations of undue delay, waste of
  time, or needless presentation of cumulative
  evidence.

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notes

• Crime punishable by felony-level sentence
  (Death, DD, or Conf gt1 yr) means that the crime
  carries a potential sentence of that much.
• For UCMJ, this means the MCMs Table of Max
  Punishments, not whether trial was by GCM, SPCM,
  or SCM, governs.
• Punishment doesnt matter for False
  Statement or Dishonesty Crimes
• For MRE 609, involves is sufficient.
• For FRE 609, only if it can be readily
  determined that . . . the elements of the crime
  required proof or admission of an act of
  dishonesty or false statement.

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PC Types Balancing TestsDefendant Witness, PC
lt 10 yrs old
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PC Types Balancing Testswhen PC more than 10
yrs old
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To Summarize

• And to oversimplify just a bit gtgtgtgt

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Prior Conviction lt10 years old

• ADMIT IF
• Qualifying type of PC
• Tex 609 Felony or Moral Turpitude
• Fed Mil 609 felony-level or False/Dishonest
• AND
• Probative value outweighs prejudicial effect

PE
PV
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Prior Conviction gt10 years old

• ADMIT IF
• Qualifying type of PC
• Tex 609 Felony or Moral Turpitude
• Fed Mil 609 felony-level or False/Dishonest
• AND
• PV substantially outweighs PE

PE
PV
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What about a PC that was later white-washed?

• 1. PC cannot be admitted under 609 if
• procedure equivalent to pardon or annulment
  based on a finding of rehab
• AND
• witness not convicted of subsequent
  felony-level crime (Fed Mil), or of a felony or
  moral turpitude crime (Tex).

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What about a PC that was later white-washed?

• 2. PC cannot be admitted under 609 if
• procedure equivalent to pardon or
  annulment,
• based on a finding of innocence
• same in all three systems

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What about a PC that was later white-washed?

• 3. PC cannot be admitted under Tex 609 if
• witness satisfactorily completed probation
• AND
• witness not convicted of subsequent felony
  or moral turpitude crime.
• no counterpart provision in FRE or MRE
  609

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How final must a conviction be to use it for 609
impeachment?

• MRE 609 For a court-martial, conviction doesnt
  occur until sentence is adjudged.
• MRE FRE 609 A witness can be attacked with
  her PC even if it is still subject to appellate
  review (but the proponent can mitigate with
  that fact).

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How final must a conviction be to use it for 609
impeachment?

• However, under Tex 609, the PC cannot be used
  until it is FINAL Witness cannot be attacked
  with her PC if any appeal is still pending.
• In Texas, a deferred adjudication is not a
  conviction, for 609 purposes.

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Notice of Intent to Impeach with 609
Evidence

• Under Tex 609, the proponent of a PC must always
  give advance notice of intent to impeach a
  witness, when asked to provide such by opposing
  counsel.
• Under FRE MRE 609, the proponent of a PC is
  required to give advance notice of intent to use
  it to impeach a witness, when the PC is more than
  ten years old.

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Backtracking

• Under all three evidence systems, convictions are
  evaluated differently, depending on whether more
  than ten years have elapsed. . . .

21
Prior Conviction lt10 years old

• ADMIT IF
• Qualifying type of PC
• Tex 609 Felony or Moral Turpitude
• Fed Mil 609 felony-level or False/Dishonest
• AND
• Probative value outweighs prejudicial effect

PE
PV
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Prior Conviction gt10 years old

• ADMIT IF
• Qualifying type of PC
• Tex 609 Felony or Moral Turpitude
• Fed Mil 609 felony-level or False/Dishonest
• AND
• PV substantially outweighs PE

PE
PV
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How will the trial judge determine the age
of the PC ?

• Under all three evidence systems, the conviction
  is dated as of the LATER of
• the date of conviction
• OR
• the date of release from confinement for that
  offense.
• The impact of parole is unsettled.

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What date should the trial judge use to evaluate
the age of the PC ?

• Dating the conviction gives its birthdate, but in
  a close case near the ten-year line, what point
  should the trial judge use to determine the
  elapsed time for that PC ?
• ________________________________________
• PC date new
  arrest trial attempt to
• or release
  crime begins impeach Witn

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To Tack or Not to Tack, that is the question. . .
.

• Only in the Lone Star State
• ______________________________________________
• 18 yr ten yr
  3 yr
  attempt to
• old line
  old
  impeach Witn
• PC
  PC

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Tex. R. Evid. 609 Sources

• Theus v. State, 845 S.W.2d 874 (Tex. Crim. App.
  1992) (explaining how trial courts should
  evaluate the balance between probative value and
  prejudicial effect in Rule 609).
• Hankins v. State, 180 S.W.3d 177 (Tex.
  App.Austin 2005, pet. refd) (holding that
  tacking is contrary to Rule 609).
• Jackson v. State, 50 S.W.3d 579 (Tex. App.Fort
  Worth 2001, pet. refd) (relying on the tacking
  doctrine to avoid the criteria of Rule 609(b)).
• Woodall v. State, 77 S.W.3d 388 (Tex. App.Fort
  Worth 2002, pet. ref'd) (relying on the tacking
  doctrine to avoid the criteria of Rule 609(b)).
• Robert F. Holland, It's About Time The Need for
  a Uniform Approach to Using a Prior Conviction to
  Impeach a Witness, 40 St. Marys L.J. 455 (2008).

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Sources for Fed. R. Evid. 609 and for Mil. R.
Evid. 609

• United States v. Hawley, 554 F.2d 50 (2d Cir.
  1977).
• United States v. Mahone, 537 F.2d 922 (7th Cir.
  1976).
• United States v. Sitton, 39 M.J. 307 (C.M.A.
  1994).

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Questions?