EvidenceProf Blog

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

Saturday, August 19, 2017

Florida Murder Trial Reveals Different Test For Impeaching Witnesses With Remote Convictions

Federal Rule of Evidence 609(b) provides as follows:

(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.

As the recent opinion of the District Court of Appeals of Florida, First District, in Nehring v. State, 2017 WL 3361068 (Fla.App. 2017), makes clear, however, Florida has a very different rule.

In Nehring, Nicholas Nehring claimed that the trial court at his murder trial "should not have allowed the state to impeach his only witness with felony convictions that were at least seventeen years old. In addressing this issue, the appellate court acknowledged that, if Nehring's case were being tried under the Federal Rules of Evidence, the State would have needed to establish that the probative value of these older convictions substantially outweighed their prejudicial effect.

But the court noted that the Florida rule is different. Specifically, Section 90.610(1)(a) of the Florida Revised Statutes states that

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

The court then pointed out that "[t]he same rule applies in criminal trials." 

Accordingly, the Florida Rule lacks Federal Rule of Evidence 609(b)'s

inverted balancing test for remote convictions....The only test for the admissibility of a prior conviction is whether the conviction has any bearing on the witness's credibility....The remoteness of the conviction will most certainly be a factor in determining whether it bears on the witness's credibility, but there is no bright-line rule for when a conviction becomes too remote to bear on the witness's credibility. The determination is within the trial court's discretion,... and a trial court abuses its discretion only when its decision is arbitrary or fanciful.

Finding no such abuse of discretion, the appellate court upheld the trial court's ruling and the defendant's conviction.



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It is disappointing, though not surprising, that Florida treats those with felony convictions in this manner, no matter how remote in time, irrelevant to the issue at hand, or how minor the offense was (as long as it might be punishable by more than 1 year in prison). I remain patiently hopeful that our society in general will realize that this stigma is both unnecessary and unwarranted.

Posted by: FormerAgent | Aug 20, 2017 2:12:47 PM

I think this is an unfortunate reading by the court. As written, it seems to me the language of the rules would side with the appellant here absent something which showed the prior conviction was still representative of the witness's character. Seventeen years is a long time, and if that's the only or most recent conviction which can be used to impeach him one would think it's not particularly probative with respect to his current character.

Posted by: bacchys | Aug 23, 2017 3:45:24 PM

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