Article VI. Witnesses

219

Rule 609: Impeachment by Evidence of Conviction of Crime.

(a) General Rule - For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

(b) Time Limit - Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

(c) Effect of Pardon - Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon based on a finding of the rehabilitation of the person convicted and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon based on a finding of innocence.

(d) Juvenile Adjudications - Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, allow evidence of a juvenile adjudication of a witness other than the accused in a criminal case if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination in a civil action or criminal proceeding.

(e) Pendency of Appeal - The pendency of an appeal of a conviction does not render evidence of that conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Advisory Commission Comments.

The Supreme Court adopted F.R.Evid. 609(a) & (b) in State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), and thereby rejected the old "moral turpitude" criterion for admissibility of convictions to impeach. Proposed Tennessee Rule 609(a) takes Morgan at face value and lists its essential elements:

(1) The time of proof ordinarily is during cross-examination, but the witness's denial triggers extrinsic evidence. This rule does not preclude questions about prior convictions during direct examination.

(2) Only felony convictions or those misdemeanor convictions involving dishonesty are competent for impeachment. See State v. Butler, 626 S.W.2d 6 (Tenn. 1981), for the Supreme Court's view that theft crimes involve dishonesty. The rule is consistent with Butler.

(3) When the witness in a criminal trial is the accused, the prosecution "must"give pretrial notice and the trial judge "must"make a determination before the accused elects to testify or not that the probative value of the conviction "on credibility"is greater than its "unfair prejudicial effect on the substantive issues."To the extent that State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984), is inconsistent, the proposal would change the result.

Note that the accused who does not take the witness stand because of an unfavorable ruling on admissibility of a prior conviction can nonetheless raise error on appeal.

For witnesses not covered by 609(a)(3), the balancing test is different. Rule 403 applies, and a conviction would be admissible to impeach unless "its probative value is substantially outweighed by the danger of unfair prejudice"or other criteria listed in that rule.

Part (b) of proposed Rule 609 restates and hopefully clarifies Morgan language concerning inadmissibility of stale convictions. To avoid the mistaken exclusion of convictions "ten years old," the rule separates convictions with time served from those where the convict served no prison time. Normally, ten years would be measured from release from jail to commencement of prosecution.

Even old convictions can be used in certain instances, but the proposed rule requires a weighing ("substantially outweighs") of probative value versus undue prejudicial effect, with a specific factual determination by the trial judge.

Part (c) excludes only those convictions of witnesses pardoned because of rehabilitation or innocence.

Part (d) follows the current philosophy expressed in T.C.A. § 37-1-133(b) and State v. Butler, 626 S.W.2d 6 (Tenn. 1981). Constitutional confrontation issues may require admitting the juvenile record of a witness testifying against the criminal accused. See Davis v. Alaska, 415 U.S. 308 (1974).

Part (e) permits impeachment by a conviction undergoing appeal because, under Tennessee law, the convict is presumed guilty after judgment.

Advisory Commission Comments [2001].

The Tennessee Supreme Court suggested in State v. Galmore, 994 S.W.2d 120 (1999), and State v. Taylor, 993 S.W.2d 33 (1999), that the accused in a criminal trial may need to make a jury-out offer of proof in order to reverse the trial court for an erroneous ruling that a conviction is admissible to impeach. Such error might otherwise be harmless.

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