EvidenceProf Blog

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

Wednesday, March 21, 2012

A Matter Of Conviction: District Of Montana Only Allows For Impeachment Through Fact Of Conviction

Federal Rule of Evidence 609(a)(1) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....

A conviction's probative value under Rule 609(a)(1) depends on how much bearing it has on the witness' honesty while a conviction's prejudicial effect depends on how much the jury will use the conviction to conclude, "Once a criminal, always a criminal." What this means is that courts will often allow for the admission of evidence that a criminal has a prior conviction without allowing evidence of the nature of that prior conviction as was the case in United States v Durbin, 2012 WL 894410 (D.Mont. 2012).

In Durbin, Christopher Durbin was charged with drug-related crimes such as aggravated structuring and conspiracy to launder monetary instruments. Before trial, Durbin filed a motion in limine seeking to preclude the prosecution from presenting any evidence of his 2008 conviction for unlawful delivery of marijuana.

In response, the United States District Court for the District of Montana found that the evidence had probative value because the Ninth Circuit has held that drug offenses "are probative of veracity." On the other hand, the court acknowledged that 

"Where, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury's fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again."

Thus, the court reached a compromise:

evidence of Durbin's prior felony conviction for "the purpose of attacking [Durbin's] character for truthfulness" is admissible if he testifies. However, due to the similarity of the prior offense, the government will not be permitted to ask about the nature of the conviction.



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