Also known as: Fed. R. Evid. 609 · Federal Rule of Evidence 609 · Rule 609 · impeachment by conviction
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that governs the admission of prior criminal convictions to attack a witness's character for truthfulness. The rule distinguishes between felonies and crimes involving dishonesty or false statement and imposes different balancing tests depending on whether the witness is a defendant in a criminal case. It also sets time limits and bars convictions that have been vacated or annulled on rehabilitation or innocence grounds.
Plaintiffs called Martin Blake to testify that all disclosures were accurate. On cross-examination they sought to ask about a prior misdemeanor conviction for filing false financial reports. The court allowed the question because the conviction rested on a dishonest act and directly bore on credibility.
Maria Ohler faced drug charges and the government obtained an in limine ruling admitting her prior felony conviction. She testified on direct and admitted the conviction herself. The Supreme Court held she could not later challenge the ruling on appeal.
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Defense counsel asked Thibodeau on cross-examination whether he knew Besore had a criminal record. The prosecutor objected that Rule 609 permits impeachment only of the witness on the stand. The court sustained the objection because the conviction could not be proved through a third-party witness.
A witness gave damaging testimony and the defense suggested a motive to fabricate. The government offered prior consistent statements. The Supreme Court required the statements to rebut the specific motive before they could be admitted for substantive use.
The defendant moved in limine to bar use of a prior conviction if he testified. He made no commitment to testify and offered no proffer of his testimony. The Supreme Court held that a defendant who does not testify cannot obtain appellate review of the in limine ruling.
The government introduced evidence that a defense witness and the defendant belonged to the same prison gang whose members were expected to lie for one another. The Supreme Court held the evidence admissible to show bias even though it did not directly impeach the witness's own character for truthfulness.
Under Rule 609(a)(1)(A) the conviction must be admitted unless its probative value is substantially outweighed by unfair prejudice or other Rule 403 factors. The conviction need not involve dishonesty.
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Rule 609(a)(1)(B) requires that the probative value of the conviction outweigh its prejudicial effect to the defendant, reversing the ordinary balancing test.
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Rule 609(c) bars the conviction if it was vacated or pardoned on a finding of rehabilitation and the witness has no later conviction punishable by more than one year, or if it was annulled on a finding of innocence.
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Rule 609(b) requires that the probative value supported by specific facts substantially outweigh the prejudicial effect and that reasonable written notice be given so the adverse party can contest use of the conviction.
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…such a change." Green v. Bock Laundry Machine Co. , 490 U. S. 504, 521 (1989) (applying that presumption in interpreting Federal Rule of Evidence 609). Nothing in the Advisory Committee's Notes suggests that it intended to alter the common-law premotive requirement. C The Government's final argument in favor of affirmance is that…