FRE 609


Rule 609 allows a witness to be impeached by past criminal actions in certain conditions. The proposition is to attack the witness’s honesty. This principle has several implications for criminal defendants. First, criminal defendants are in a precarious situation, they either fail to take the stand (avoiding cross examination of prior convictions) and make themselves susceptible to jury inferences of guilty by silence, or take the stand and suffer the effects of cross examination of prior convictions. The result? A likely conviction regardless of the chosen path.


For FRE 609 evidence against a criminal defendant to be admissible it needs to (1) pertain to a crime punishable by death or imprisonment in excess of a year (609(a)(1)(B)); (2) not be over 10 years old (609(b)) unless justice so requires outweighing prejudicial effect; (3) provide advance notice; and (4) consider a weighing analysis factoring the nature of the crime, conviction and subsequent history, similarity between past crimes and current crime, importance of the defendant’s testimony, and how central is credibility.

Evidence against a witness, not the defendant, only requires a 403 analysis under the fourth element illustrated above.

Crimes regarding dishonesty must be admitted, regardless of the punishment and does not require a 403 balancing unless 609(b), (c), or (d) applies (based on time or juvenile crimes).

United States v. Brewer

451 F. Supp. 50 (E.D. Tenn. 1978).

Brewer was being tried for kidnapping. On initial hearing, the court decided to let four past convictions into evidence (kidnapping, rape, aggravated assault, and assault with a deadly weapon). All of these convictions occurred some time ago, but the defendant had been released within the 10 year limiting period. Upon further consideration however, the court determined the weighing factors would limit the previous kidnapping conviction to be excluded because it may lead the juror to believe the defendant may have kidnapped again.

Case Notes

United States v. Valencia, 61 F.3d 616 (8th Cir. 1995), the state attempted to offer a prior conviction during its case in chief which was denied due to 404(b). Later, during cross-examination, the state brought the same conviction up during questioning which was admitted. The defendant argues this should not have been done because the court already did the balancing earlier finding it inadmissible. However, this is admissible because the two tests are figuring out different things: 404(b) goes towards character solely, and 609 is designed to address the credibility of the witness. Thus, the admission was fine.

Altobello v. Borden Confectionary Products, Inc., 872 F.2d 215 (7th Cir. 1989), the state attempted to admit a past conviction about a theft that carried only a six month penalty, but affirmed that the defendant “tampered” with electronic meters to help others reduce electric bills. Short penalty, but does it go to truthfulness? Yes, this could come in through 609(a)(2), not 609(a)(1).

Luce v. United States, 469 U.S. 38 (1984). In Luce a defendant chose not to testify after assuming his past convictions would be admissible. He later appealed. However, the Court said that the defendant’s failure to testify barred his appeal because there is no way of knowing how the challenged evidence would have affected the outcome of the case.

Ohler v. United States, 529 U.S. 753 (2000). In Ohler, the government made a motion regarding the admissibility of past convictions and the judge said they would be admissible. On direct examination (before the prosecution) Ohler testified regarding the past convictions and was convicted. On appeal, the court said the prosecution had to introduce the evidence. Admission on her own accord barred the right to complain about admission.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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