Saturday, April 24, 2010
Murphy's Law: New Jersey Court Finds Admission Of Defendant's 17 Year-Old Conviction Required Reversal
Federal Rule of Evidence 609(b) 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. 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.
Moreover, the Advisory Committee's Note to the Rule indicates that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." Conversely, New Jersey Rule of Evidence 609 merely provides that
For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.
Under this Rule, it is thus unclear how New Jersey courts should treat convictions that are more than ten years old, but it is clear that convictions more than sixteen years old will almost never) be admissible, at least according to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Murphy, 2010 WL 1609379 (N.J.Super.A.D. 2010).
In Murphy, Karl Murphy was convicted of third-degree possession of a controlled substance. At trial, the court deemed Murphy's seventeen year-old conviction for possession of a controlled dangerous substance admissible to impeach him. This ruling formed the partial basis for Murphy's appeal.
And according to the Superior Court of New Jersey, Appellate Division,
unlike Fed.R.Evid. 609(b), N.J.R.E. 609 contain[s] no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice.
The court went on to find, however, that
The only reported decision ever to have permitted a defendant to be impeached with a conviction nearly as old as this one was State v. Paige,...in which the State was permitted to impeach the defendant's credibility with a conviction that had occurred sixteen years earlier.
The court, however, did not find the present conviction comparable to the conviction in Paige because
defendant's prior conviction for possession of CDS with intent to distribute pales in comparison to the murder conviction used for impeachment purposes in Paige. Obviously, the more serious the prior conviction, the greater its probative value....Defendant's prior conviction here cannot be said to be of that character, as he received only a probationary sentence at the time of his 1990 conviction.
Because the court found that this error was not harmless, it thus reversed Murphy's conviction.