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Univ. of South Carolina School of Law

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Sunday, February 14, 2010

Impeachable Offenses: Opinion Reveals Differences Between Federal And Indiana Rules Of Evidence 609(a)(1)

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has 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.
As the recent opinion of the Court of Appeals of Indiana in Perry v. State, 2010 WL 415281 (Ind.App. 2010), makes clear, Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart.

In PerryRodney Perry was convicted of dealing in cocaine and possession of cocaine. Those convictions came after Perry participated in a drug deal with Nicholas Riedman, a confidential informant. At trial, Riedman testified against Perry, who sought to impeach him through evidence of his prior conviction for possession of marijuana. The trial court, however, precluded such impeachment, and this ruling formed the partial basis for Perry's appeal.

In considering that appeal, the Court of Appeals of Indiana noted that the issue was governed by Indiana Rule of Evidence 609(a), which provides that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.

Under this Rule, the court easily concluded that Riedman's conviction was inadmissible for impeachment purposes because possession of marijuana is neither an enumerated crime under Indiana Rule of Evidence 609(a)(1) nor a crime involving dishonesty or false statement under Indiana Rule of Evidence 609(a)(2).

As noted above, Perry reveals that Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart. It is broader because it allows for the admission of even misdemeanor convictions for crimes such as robbery and burglary while its federal counterpart only allows for the admission of felony convictions for these crimes (unless they involve dishonesty or false statement). Conversely, it is narrower because it does not allow for the admission of felony convictions for crimes such as larceny or drug trafficking while its federal counterpart could allow for their admission.

(As a side note, I find it odd that Indiana Rule of Evidence 609(a)(1) covers perjury while Indiana Rule of Evidence 609(a)(2) covers "a crime involving dishonesty or false statement." Isn't that overkill?)

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/02/federal-rule-of-evidence-609a-provides-thatfor-the-purpose-of-attacking-the-character-for-truthfulness-of-a-witness1evi.html

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