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By: Andrew DeSimone

This article is brought to you by the Trial Tactics Committee online community daily digest, which allows members to send questions to other members about issues of law.  In February 2015, I had sent a request to other members related to the use of FRE 609 at trial.  I was used to my local state law counterpart to this rule of evidence, which allows for admission that the witness was a felon, but not evidence of the underlying felony.

Matt Boyer of Nall and Miller, LLP in Atlanta, Georgia, responded with case law indicating that the underlying conviction is admissible into evidence under FRE 609.  Below is a brief summary of the applicable case law.  FRE 609 when used properly can totally eviscerate the credibility of felon witnesses at trial.  Thank you Matt!

FRE 609(a)(1)(A) states as follows:

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.

The United States Congress, in enacting FRE 609, made a determination that evidence of a witness’ felony convictions is relevant because it goes towards the “witness’s character for truthfulness.”  See FRE 609(a)(1)(A).  “The implicit assumption of [FRE] 609 is that prior felony convictions have probative value, and that probative value is likely to vary depending on the number and type of convictions.”  United States v. Burston, 159 F.3d 1328, 1336 (11th Cir. 1998) (citing 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6134, at 221-27 (1993)).  Indeed, FRE 609(a)(1)(A) mandates the trial court to admit the felony conviction unless it fails the balancing test of FRE 403: “must be admitted.”

In Burston, the Georgia criminal defendant alleged error in being prohibited from impeaching a government witness through his four felony convictions.  “The district court limited [the defendant] to evidence that [the witness] has a ‘felony conviction,’ apparently on the ground that testimony as to the nature and number of [the witness’s] convictions lacked probative value.”  Id. at 1334.  Citing to supporting cases from the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, the Eleventh Circuit found this ruling to be error, though harmless.

[The probative value of felony convictions], however, necessarily varies with their nature and number. . . .  Evidence of a murder conviction says something far different about a witness’ credibility than evidence for a minor drug offense, although both may constitute a prior felony conviction.  Furthermore, evidence of fifteen murder convictions says something different about a witness’ credibility than evidence of only one such conviction.  We are not certain what evidence of two convictions for theft by unlawful taking, one conviction for armed robbery and one conviction for aggravated assault says about [the witness’] credibility, but we are certain that the jury should have been given the opportunity to make that decision.

Burston, 159 F.3d at 1335 (emphasis added) (citing Doe v. Sullivan County, 956 F.2d 545, 551 (6th Cir. 1992)).

The Eleventh Circuit states that “[w]e therefore conclude that [FRE] 609(a)(1) requires a district court to admit evidence of the nature and number of a non-defendant witness’ prior felony convictions.”  Id. at 1336.

The Sixth Circuit has taken a similar approach. See, e.g., Donald v. Wilson, 847 F.2d 1191, 1197 (6th Cir. 1988) (allowing introduction of the inmate plaintiff’s rape conviction in his 42 U.S.C. § 1983 civil action). In Wilson, the plaintiff was an inmate at the Southern Ohio Correctional Facility serving time for rape.  He alleged personal and constitutional injuries when he slipped in the shower after his prosthesis was taken from him; and in being forcibly removed from his jail cell.  Id. at 1193.  At trial, the inmate plaintiff’s rape conviction was admitted over his objection.  The Sixth Circuit held the admission of the rape conviction proper, in part because the inmate was a plaintiff in a civil lawsuit.  Id. at 1195.  In conducting the FRE 403 balancing test required under FRE 609, the Sixth Circuit stated affirmatively: “we cannot say the probative value of the prior conviction [rape] was substantially outweighed by prejudice.”  Id. at 1197. In reaching this decision, the Sixth Circuit was “influenced by the fact that the jury already knew the plaintiff was a convicted felon as the entire scenario unfold[ed] in a jail.  Thus, we do not have the interjection of the criminal record of a witness out of the blue.”  Id. at 1198.

Based upon this case law, a felon witness can be attacked with the nature and number of the felony convictions.  Since the FRE 403 balancing test requires that the prejudice substantially outweigh the probative nature of the felony conviction, exclusion will be the exception and not the rule.  In the hands of a good defense counsel, FRE 609 becomes a potent cross-examination tool.