Saturday, May 1, 2021
Middle District of Pennsylvania Finds 20 Year Old Convictions Admissible to Impeach Cooperating Witness
Federal Rule of Evidence 609(b) states the following
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 indicates,
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. Rather than exclude all convictions over 10 years old, the committee adopted an amendment in the form of a final clause to the section granting the court discretion to admit convictions over 10 years old, but only upon a determination by the court that the probative value of the conviction supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.
In rare cases, however, 10 year old convictions are admissible. And, in very rare cases, like United States v. Larry, 2021 WL 1695800 (M.D.Pa. 2021), 20 year old convictions are admissible.
In Larry, Brian Larry was charged with wire fraud and related crimes. Before trial, the prosecution filed a motion in limine "to preclude defendant Brian Larry from impeaching its Cooperating Witness No. 1 (“CW-1”), who will testify during its case-in-chief, with CW-1's 2000 convictions for multiple counts of racketeering, obtaining money by false pretenses, and insurance fraud."
In response, the defense argued that
The probative value of [CW-1's prior] convictions is high because the government will undoubtedly attempt to present [CW-1] to the jury as a man who should be trusted despite his ‘acknowledgment’, indeed trusted specifically because he now admits how he once strayed from the straight and narrow path, has accepted responsibility, has agreed to provide complete and truthful testimony for the government, etc. Evidence of [CW-1's] prior convictions is necessary to contradict this narrative and give the jury a fair perception of [CW-1] as a habitual liar, or at least a person who has engaged in untruthful conduct repetitively. The convictions show that [CW-1] previously participated in a dishonest scheme and entered a plea of guilty to charges of obtaining money by false pretenses and insurance fraud on a prior occasion. And despite whatever chastening effect the convictions had upon [CW-1], he went and did it all over again, presumably because a tendency to be untruthful is part of his character. Excluding evidence of [CW-1's] prior convictions would “not permit defense counsel to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness,” in violation of the Constitution's Sixth Amendment.
The court agreed with the defense, ruling as follows:
The court also finds that the probative value of CW-1's prior crimen falsi convictions which “bear[s] directly on [the] witness's propensity to testify truthfully”...substantially outweighs its prejudicial effect. The jury is entitled to hear that CW-1 has a history of involvement with crimes involving dishonesty and this may effect the jury's credibility determination with respect to this witness. Also, since CW-1 will be admitting at trial that he/she pleaded guilty to the fraud and identity theft charges in the instant case, this actually reduces any prejudicial effect from the witness's prior convictions since evidence of the witness's recent involvement with crimen falsi crimes will already be heard by the jury.