Wednesday, January 16, 2008
Pursuant to Federal Rule of Evidence 609, witnesses, including parties, in both criminal and civil cases can be impeached by prior felony convictions and convictions for crimes involving dishonesty or false statement. As I have noted, however, Federal Rule of Evidence 609 is a confusing rule which courts often misapply because it makes changes to the Rule 403 balancing test depending on whether the prior conviction/date of release is more than 10 years-old and whether the prior conviction was a conviction of the criminal accused or a conviction of some other witness/party.
By contrast, Hawaii's version of Rule 609 states that "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is inadmissible except when the crime is one involving dishonesty. However, in a criminal case where the defendant takes the stand, the defendant shall not be questioned or evidence introduced as to whether the defendant has been convicted of a crime, for the sole purpose of attacking credibility, unless the defendant has oneself introduced testimony for the purpose of establishing the defendant's credibility as a witness, in which case the defendant shall be treated as any other witness as provided in this rule."
A comparison reveals that Hawaii's version is different because (1) it does not allow impeachment based upon felony convictions, unless they involve dishonesty, and (2) it does not allow impeachment of criminal defendants unless the criminal defendant first presents testimony bolstering his credibility (such as a witness testifying that the defendant is trustoworthy to show that his testimony can be trusted). To a large degree, then, the current Hawaii rule mirrors the treatment of character evidence under Federal Rule of Evidence 404(a)(1) (and state counterparts), which states that the prosecution can't introduce bad character evidence against a criminal defendant until the defendant first presents good character evidence (such as a witness in a murder trial testifying that the defendant has a reputation for being non-violent to show that he likely didn't commit the murder at issue). The commentary to Hawaii Rule of Evidence 609 states several reasons why Hawaii has not adopted the federal rule, including the claim that the federal rule "is confusing, ambiguous, and awkwardly worded."
If top law enforcement officials in Hawaii have their way, however, Hawaii will soon amend its rule so that the second difference with the federal rules is eliminated. With a mind toward improving public safety, these officials want a state constitutional amendment that will allow criminal defendants who take the stand to be impeached by prior conviction, whether or not they first present good character evidence. It will be interesting to see whether such an amendment indeed gets passed and whether Hawaii takes heed of the criticism of the federal rule in its commentary and alters its rule in a way that produces a less confusing result.