Wednesday, September 18, 2013
Federal Rule of Evidence 609(a)(2) provides that
for any crime regardless of the punishment, the evidence must be admitted [to impeach a witness] if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
That said, Federal Rule of Evidence 609(b) states that
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.
Therefore, a conviction for a crime of dishonesty or false statement is per se admissible if it is not more then 10 years old but presumptively inadmissible if it is more than ten years old, as was the case in Deluxe Bldg. Systems, Inc. v. Constructamax, Inc., 2013 WL 5179077 (D.N.J. 2013).
Deluxe Bldg. Systems was a breach of contract action in which there was no question regarding liability; it was undisputed that there was a breach of contract. The only issue remaining for trial was the amount of damages to be awarded. One of the principals -- John Saracco -- of a firm that worked on the contract had a prior conviction for offering a false instrument for filing that was 14 years old, and the District of New Jersey had to determine whether the conviction would be admissible to impeach him at trial. The court found that it would not. According to the court,
Under Rule 609(b), evidence of Saracco's conviction is presumptively inadmissible because it is more than ten years old. To obtain its admission, Arch/Cmax would have to demonstrate that the probative value of the conviction substantially outweighs its prejudicial effect. They point out, correctly, that the knowing submission of a false document is a crime of falsehood. The conviction, however, occurred fourteen years ago. This misdemeanor conviction would taint Saracco's entire testimony, but, given its age, it would have slight probative value as to Saracco's current credibility. In short, the prejudicial effect of a criminal conviction is likely to have an effect on the jury that is not substantially outweighed by its probative value.
Moreover, the court found that
On the subject of probativeness, I note also that the impeachment, or not, of Saracco's credibility probably is not central to any party's proofs at trial. This is a breach of contract case in which liability has already been determined and the remaining issues center around damages. Saracco's testimony will principally relate to the design and construction of the project. Much of it will probably be cumulative of the project documents and the correspondence among the parties, which will be the primary evidence on these issues.