EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, June 23, 2009

Going Unnoticed: Texas Appeal Illustrates Difference Between Texas And Federal Rule Of Evidence 609(b)

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible [to impeach a witness] if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Texas Rule of Evidence 609(b) contains the first sentence of its federal counterpart, but it does not contain the second sentence, and this omission apparently made the difference in the recent opinion of the Court of Appeals of Texas in Gore v. State, 2009 WL 1688196 (Tex.App.-Hous. [1 Dist.] 2009).

In Gore, Keeln Gore was charged with second offender assault to a family member.

During cross-examination of [Gore], the State asked if appellant was the same person who had been convicted of unauthorized use of a motor vehicle (UUMV) on two previous occasions. At that point, [Gore]'s attorney objected by stating, "Judge, the State did not give notice under 609. Additionally, the prior convictions are more than ten years old.” [Gore]'s attorney further stated, “We would also object to remoteness, Judge; they're more than ten years old."

The judge, however, found that the probative value of this conviction substantially outweighed its prejudicial effect and thus admitted it under Texas Rule of Evidence 609(b), which provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless 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.

Now, the court did not squarely address the notice requirement, and I think that the comparison between Texas Rule of Evidence 609(b) and Federal Rule of Evidence 609(b) explains the reason why. Texas Rule of Evidence 609(b) does not have a notice requirement like Federal Rule of Evidence 609(b). Texas Rule of Evidence 609(f) does indicate that

Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

As is clear from this Rule, however, notice only need be given after a timely written request, and I am guessing that in Gore, defense counsel did not submit such a written request.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/06/609-txkeelan-gore-appellant-v-the-state-of-texas-appellee----sw3d------2009-wl-1688196texapp-hous-1-dist2009.html

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