EvidenceProf Blog

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

Friday, January 3, 2014

Avoiding A Pile-On: 7th Circuit Find Rule 609(b) Precluded Admission of 11 Year-Old Conviction

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.

As the recent opinion of the Seventh Circuit in United States v. Rucker, 2013 WL 6857989 (7th Cir. 2013), makes clear, one potential stumbling block to the admissibility of old convictions under Rule  609(b) is the admissibility of other convictions for impeachment purposes.

In Rucker, Phillip Rucker was charged with wire fraud. At trial, Sheila Chandler testified against Rucker as a witness for the prosecution. Thereafter, Rucker successfully impeached Chandler with eleven prior convictions for wire fraud and unsuccessfully sought to impeach her with evidence of her eleven year-old conviction for theft concerning a program receiving federal funds.

After he was convicted, Rucker appealed, claiming, inter alia, that the district court erred by precluding this latter act of impeachment. In response, the Seventh Circuit noted that,

In this case, there is no issue as to Rucker giving notice of his intent to use the remote conviction to impeach Chandler because the government's pretrial motion in limine to preclude use of that conviction clearly shows that the government had notice. Also, it is undisputed that when Chandler testified in December 2011, more than ten years had passed since her 2000 conviction for which she was not confined but rather served a term of probation....Thus, the only issue is whether the district court abused its discretion in finding that, under the circumstances, the probative value of the prior conviction did not substantially outweigh its prejudicial effect.

And the problem for Rucker, according to the court, was that ,

in light of the admission of Chandler's eleven prior convictions for wire fraud that were within the ten-year window, her 2000 conviction had very little probative value, if any....Thus, the district court did not abuse its discretion in finding that the probative value of the remote conviction did not substantially outweigh the prejudicial effect of presenting cumulative evidence.



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