Thursday, April 1, 2021
Federal Rule of Evidence 609(b) states the following:
(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 Advisory Committee's Note to the Rule makes clear
It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.
The recent opinion of the United States District Court for the Southern District of New York in United States v. Tagliaferro, 2021 WL 1198951 (S.D.N.Y. 2021), is no exception.
In Tagliaferro, Salvatore Tagliaferro was charged with three criminal acts of bribery. Before trial, the prosecution filed a motion in limine, seeking to impeach Tagliaferro with his 1997 conviction for conspiracy to sell stolen goods. The court denied the motion, concluding that
After balancing these factors, the Court denies the Government's motion to admit the prior conviction as impeachment evidence against Tagliaferro. The probative value of the prior conviction does not substantially outweigh its prejudicial effect. See FED R. EVID. 609(b). The conviction occurred nearly a quarter century ago,...involved a crime that is not probative of Tagliaferro's character for truthfulness,...and carries the substantial risk of a propensity inference by the jury. See id. In addition, the Government has not shown why other methods of impeachment that are less prejudicial could not be used against Tagliaferro....Accordingly, the prior conviction is inadmissible as impeachment evidence against Tagliaferro should he testify at trial.