EvidenceProf Blog

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

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Wednesday, March 30, 2011

18 And Life: 9th Circuit Finds No Problem In Precluding Impeachment Via 18 Year-Old False Statement Conviction

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.

From my research in the area, it seems that courts tend to admit convictions under Rule 609(b) only if (1) they are for crimes of dishonesty or false statement, and (2) they occurred not that much more than ten years before the present trial. In United States v. Swift, 2011 WL 1097756 (9th Cir. 2011), the appellant satisfied the first of these requirements, but not the second.

In Swift, Stephen Swift appealed from his convictions for (2) the unlawful transport of hazardous waste without a manifest, and (2) the unlawful storage of hazardous waste without a permit. One of the grounds for Swift's appeal was that the district court precluded him from impeaching a witness for the prosecution with his prior conviction for making a false statement. The Ninth Circuit easily turned this argument aside, concluding that  "[a]lthough the witness' conviction was for making a false statement, it occurred eighteen years before the time of trial. Its probative value does not substantially outweigh its prejudicial effect. See Fed.R.Evid. 609(b)."

Although it would have been nice if the court engaged in a more extensive analysis, its conclusion is consistent with the Advisory Committee's Note to Federal Rule of Evidence 609, which provides that "It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/03/609b-us-v-swiftslip-copy-2011-wl-1097756ca9-hawaii2011.html

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