Tuesday, January 24, 2012
Federal Rule of Evidence 609(b) states:
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Moreover, the Advisory Committee Note to this Rule states 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." In other words, it is rare that a conviction that is more than ten years old is admissible under Federal Rule of Evidence 609(b).
Conversely, New Jersey Rule of Evidence 609 simply states 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.
And, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Rock, 2012 WL 177866 (N.J.Super.A.D. 2012), makes clear, convictions that are more than ten years old are routinely admitted under this Rule.
In Rock, Eric Na–Eem Rock was convicted of two counts of armed robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, and, after a second jury trial, second-degree possession of a weapon by a convicted person. Before trial, the court determined that two of Rock's prior convictions would be admissible in the event that he testified at trial: Rock's 1998 convictions for fourth-degree evidence tampering and second-degree aggravated assault. Specifically,
The judge noted that the evidence tampering conviction "even though it's only a fourth[-]degree crime,... falls into that...category of crimes that impact one's veracity." The judge concluded that "the convictions pass the test with regard to remoteness" and will "be admitted for purposes of impeachment if the defendant" testifies. However, "it would be appropriate to sanitize" both convictions, allowing the State to refer only to the "date of the conviction, the degree of the crimes of which he was convicted, and the sentence that was imposed for each conviction."
In addressing Rock's appeal, the the Superior Court of New Jersey, Appellate Division held that
There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. See State v. Murphy, 412 N.J.Super. 553, 564 (App.Div.) (contrasting New Jersey case law with Fed.R.Evid. 609(b), which establishes a ten-year rule for admissibility of prior convictions)....In appropriate circumstances, convictions older than ten years have been found admissible.
The court then found that
the trial judge did not mistakenly exercise his discretion in ruling that defendant's convictions would be admissible if he testified. Certainly, a jury was entitled to know this information in assessing defendant's truthfulness. Moreover, these convictions clearly had a bearing on defendant's credibility and were not so distant in time to be remote.
Really? An aggravated assault conviction had a bearing on Rock's credibility? I don't see it. But what I do see is that if Rock's case were governed by Federal Rule of Evidence 609(b), there is no way that it would have been deemed admissible.