Monthly Archives: March 2016

What crimes can be used against a witness at trial?

While generally, a prior criminal conviction or prior bad act cannot be used against a witness in trial, there are some exceptions. One is detailed in Evidence Rule (ER) 609, which allows a witness to be impeached by convictions of certain crimes. ER 609 states:

“For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.”

Whether a crime “involved dishonesty or false statement” is not always obvious on its face. For instance, the crime of Burglary in the Second Degree can be a dishonest crime if the offender enters a building to steal something. But if the offender enters a building to commit an assault, the crime is still a felony, and still a burglary, but it is not a crime of dishonesty under ER 609.

ER 609 also lays out other requirements, including time limits, effect of a pardon, and whether juvenile convictions can be used against a witness. This rule applies to both criminal and civil trials. This means that a crime of dishonesty conviction years ago could potentially factor in a totally unrelated civil case years down the road. The crime of dishonesty could be enough to convince a jury to believe one witness over another. Before pleading guilty to any crime, make sure your attorney adequately advises you on whether the crime is a ER 609 crime of dishonesty, and how that conviction will be used in future legal proceedings.