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

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Thursday, February 17, 2011

10 Years Have Got Behind You: Court of Appeals Of North Carolina Finds No Error With Admission Of Conviction Under Rule 609(b)

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

As Rule 609(b) and the recent opinion of the Court of Appeals of North Carolina in State v. Bortone, 2011 WL 532136 (N.C.App. 2011), make clear this ten-year rule is based upon the date of conviction or the date of release, whichever is the later date.

In Bortone, John Bortone was convicted of two counts of injury to real property. After he was convicted, Bortone appealed, claiming, inter alia, that the trial court erred in permitting the State to impeach him with a conviction that was more than 10 years old in violation of North Carolina Rule of Evidence 609(b). Bortone's trial was held in March 1999, and during cross-examination, the State asked defendant: "Do you recall pleading guilty on April 19th of 1999, to felony forgery of deeds or wills?" Bortone confirmed that he had done so.

It turned out, however, that Bortone was actually convicted on October 19, 1998. He therefore appealed, claiming that the conviction did not satisfy the balancing test set forth in North Carolina Rule of Evidence 609(b). But according to the court, one of the problems for Bortone was that he provided no evidence of when he was released from incarceration, which presumably was the later of the two dates. Therefore, the court did not award Bortone relief.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/02/609-state-v-bortoneslip-copy-2011-wl-532136-tablencapp2011.html

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