Secret Indictment: Ninth Circuit Case Reveals Indictment Can't Be Used For Rule 609 Impeachment

The Ninth Circuit's recent opinion in In re Olson, 2008 WL 1932014 (9th CIr. 2008), contains an important discussion of when evidence of a prior crime can (and cannot) be used to impeach a witness pursuant to Federal Rule of Evidence 609 and state counterparts.  In Olson, Roy Olson appealed pro se from a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's order granting appellees retroactive relief from an automatic stay in order to validate a state court judgment entered after the bankruptcy order.

One basis for Olson's appeal was that the bankruptcy court impermissibly precluded him from impeaching a witness against him with evidence that the witness was indicted for bankruptcy fraud.  The Ninth Circuit correctly rejected this argument, noting that Federal Rule of Evidence 609 only permits a witness to be impeached through evidence that he "has been convicted of a crime;" evidence that a witness has merely been indicted for an alleged crime is not admissible under Rule 609.

The Olson case is important because I have seen many students get confused between the rules regarding character evidence and the rules regarding convictoon-based impeachment.  Under Federal Rule of Evidence 404(b) (and state counterparts), evidence that a party/witness committed a crime is admissible to prove, inter alia, knowledge, plan, or identity, regardless of whether the party/witness was charged or convicted of that crime.  So, let's say that a defendant, Dennis, is on trial for breaking into a safe and stealing $100,000.  Part of Dennis' defense at trial is that he would have no idea how to break into a safe.  The prosecution, however, has a witness who will testify that he is aware of a prior safe robbery committed by Dennis.  Even if Dennis were never charged/convicted with this prior crime, the witness' testimony is admissible to prove knowledge (that Dennis knew how to break into a safe) as long as the judge finds that a reasonable jury could find that Dennis committed the prior crime by a preponderance of the evidence pursuant to Federal Rule of Evidence 104(b).

Conversely, as noted in the Olson opinion, prior crimes of a witness can only be used to impeach that witness if he was actually convicted of the prior crime.

-CM