EvidenceProf Blog

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

Thursday, July 22, 2010

Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant's Remote Conviction Is Admissible Under Rule 609(b)

Like its federal counterpart, Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609(b) provides that

Although 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, convictions that are more than ten years old should rarely be admitted as impeachment evidence, and they should almost never be admitted against criminal defendants. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Byington, 2010 WL 2812664 (Tenn.Crim.App. 2010), however, presents one of the rare cases in which such evidence is admissible against a criminal defendant: when the subject conviction is a perjury conviction that is only slightly more than ten years old and that bears no resemblance to the crime charged.

In Byington, Terry Byington was convicted of DUI. At trial, the prosecution sought a ruling from the judge that Byington's conviction for perjury be admitted in the event that he testified. Byington was released from confinement for his perjury conviction in January 1991 and allegedly committed the DUI offense in December 2001, making his prior conviction slightly more than ten years old.

The trial court granted the prosecution's motion, and, after he was convicted, Byington appealed, claiming, inter alia, that this ruling was erroneous. The Court of Criminal Appeals of Tennessee disagreed, finding that

There are two criteria which are especially relevant when a determination is made on whether the probative value of a prior conviction outweighs any unfair prejudicial effect. These are the impeaching conviction's relevance to credibility, and the impeaching conviction's similarity to the charged offense....A perjury conviction is highly relevant to credibility, and is in no way similar to the offense of DUI. We believe that the circumstances in this case lead to a conclusion that the conviction's probative value substantially outweighed its prejudicial effect. The trial court did not err in ruling that the prior conviction was admissible to impeach Defendant's credibility. Defendant is not entitled to relief on this issue



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