Tuesday, February 3, 2009
They're Doin' It For Life: Supreme Court Of New Hampshire Opinion Reveals Recent Change To Conviction-Based Impeachment Rule
The recent opinion of the Supreme Court of New Hampshire in State v. Hebert, 2009 WL 196566 (N.H. 2009), reveals that New Hampshire recently amended its rule regarding the impeachment of witnesses through prior convictions to bring it into conformity with its federal counterpart.
In Hebert, Eric Hebert appealed his misdemeanor conviction for simple assault, claiming, inter alia, that the trial court improperly allowed the prosecution to impeach him through evidence of his prior felony conviction for operating a motor vehicle after being certified as a habitual offender. In addressing this issue, the Supreme Court of New Hampshire noted that Hebert's trial was held before New Hampshire Rule of Evidence 609(a) was amended. Thus, at the time that Hebert's case was heard, the Rule stated in pertinent part that:
"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he or she was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."
The court then found that "[t]he trial court reasoned that the habitual offender conviction evinced an abiding and repeated contempt for the law, and thus provided insight into the defendant's trustworthiness. This conclusion is not clearly untenable or unreasonable."
Overall, then, Hebert was a pretty simple opinion, with its main importance being that it taught me that New Hampshire had amended New Hampshire Rule of Evidence 609(a) in 2007. Now, the Rule states that:
"For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
In other words, New Hampshire Rule of Evidence 609(a) is now identical to Federal Rule of Evidence 609(a). So, for Hebert, this difference would have been irrelevant because, as the accused, his prior felony conviction was admissible under either version of the Rule if the probative value of that conviction outweighed its prejudicial effect. But, under the older version of the Rule, this same balancing test applied to any other witness while now, New Hampshire courts shall admit prior convictions of other witnesses as long as their probative value is not substantially outweighed by their prejudicial effect.
I generally agree with this change. But, as I note in my forthcoming article, Impeachable Offenses?, I think that civil parties in quasi-criminal cases, i.e., civil proceedings where a judgment rendered against the party necessitates a finding that the party committed a particular act that was also punishable under criminal law, should be treated like criminal defendants under the Rule(s).