Reelin' In The Years: NJ Case Reveals The State Has No Counterpart To Rule 609(b)

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.

And, according to the Advisory Committee's Note to the Rule

Although 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.

The New Jersey Rules of Evidence, however, do not have a counterpart to Federal Rule of Evidence 609(b); instead, New Jersey Rule of Evidence 609 generally 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.

So, is a 12 year-old conviction too remote under New Jersey Rule of Evidence 609? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Joseph, 2011 WL 4577401 (N.J.Super.A.D. 2011), the answer is "no" (or at least "not necessarily").

In Joseph, Richard Joseph was convicted of second-degree possession of a weapon for unlawful purposes and fourth-degree aggravated assault by pointing a firearm. After he was convicted, Joseph appealed, claiming, inter alia, that the trial court erred by permitting the prosecution to impeach a defense witness through his 12 year-old conviction for mail fraud.

In his appeal, Joseph "relie[d] on the federal analog to N.J.R.E. 609 in advancing the 'ten-year' rule. See Fed.R.Evid. 609(b)." The Superior Court of New Jersey, Appellate Division, rejected this argument, finding that

In contrast to N.J.R.E. 609, the federal analog, Fed.R.Evid. 609(b), expressly prohibits a prosecutor from seeking to impeach a defendant's credibility with evidence of a conviction if "more than ten years has elapsed since the date of the conviction or of the release from confinement imposed for that conviction, whichever is the later date" unless the judge determines that "the probative value of the conviction...substantially outweighs its prejudicial effect." Thus, 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 prekudice.

Thus, the court was able to conclude that

the judge did not abuse its discretion in permitting the State to impeach Takacs with his prior conviction for mail fraud. Fraud goes directly to the credibility of the witness. The twelve-year-old conviction was not too remote, as the fraud arose out of an incident in 1995 and he testified in 2007. We reject defendant's argument.

-CM