EvidenceProf Blog

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

Tuesday, October 8, 2024

Supreme Court of Georgia Holds Rule 609(a)(1) Doesn't Require the Court to Cite to Specific Facts and Circumstances

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. (emphasis added).

On the other hand, Federal Rule of Evidence 609(a) states the following:

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, does that mean that a judge does not need to cite to "specific facts and circumstances" in balancing probative value and unfair prejudice before admitting/excluding evidence of convictions under Rule 609(a)? That was the question addressed by the Supreme Court of Georgia regarding its state counterpart to Rule 609(a) in its recent opinion in Redding v. State, 2024 WL 4350898 (Ga. 2024).

In Redding, the defendant was convicted of felony murder and aggravated assault. After he was convicted, the defendant appealed, claiming that the trial court erred by allowing the prosecution to impeach him with evidence of three prior convictions under Georgia's counterpart to Rule 609 without citing specific facts and circumstances in balancing probative value and unfair prejudice.

In response, the Supreme Court of Georgia held as follows:

“Rule 609 of Georgia's new Evidence Code is materially identical to Rule 609 of the Federal Rules of Evidence, and, as such, we look to federal case law with respect to the interpretation and application of [Rule 609].”...United States v. Preston, 608 F.2d 626 (5th Cir. 1979) is a leading case on this question. There the Court of Appeals for the Fifth Circuit held that

a Trial Judge must make an on-the-record finding that the probative value of admitting a prior conviction outweighs its prejudicial effect before admitting a non-609 (a) (2) prior conviction for impeachment purposes under [Federal] Rule 609 (a) (1)....Although the Rule does not on its face mandate, we think it useful for Trial Judges to conduct a hearing on-the-record at which the pertinent factors are explicitly identified and weighed....

We adopt Preston's holding that Rule 609 (a) (1) does not mandate an explicit analysis of factors; we also reiterate Preston's observation about the usefulness of an explicit analysis of factors.

Here, the trial court made an on-the-record finding that the probative value of Redding's three prior convictions outweighed their prejudicial effect. For the 2015 and 2009 convictions, that was sufficient to admit them under Rule 609 (a)(1). Contrary to Redding's argument, Rule 609 (a)(1) did not require the trial court to put on the record the specific factors supporting that finding....Thus, the trial court did not legally err when it admitted Redding's 2015 and 2009 convictions without expressly stating any specific factors regarding probative value and prejudicial effect. With respect to the 2007 conviction, the record is unclear about whether Redding was released more than 10 years before his trial. If so, the trial court should have analyzed that conviction under Rule 609 (b), which imposes a stricter standard for admission than Rule 609 (a). However, assuming without deciding that Rule 609 (b)’s more stringent standard applies, and that the trial court erred by admitting the 2007 conviction, we conclude that any such error was harmless.

-CM

https://lawprofessors.typepad.com/evidenceprof/2024/10/federal-rule-of-evidence-609b-provides-that-b-limit-on-using-the-evidence-after-10-years-this-subdivision-b-applies-i.html

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