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Impeachment Evidence: 609 (SCRE)


Rule:

RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

For the purposes of this rule, a conviction includes a conviction resulting from a trial or any type of plea, including a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation or Other Equivalent Procedure. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule if conviction of the crime would be admissible to attack the credibility of an adult.

(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.


Explanation:


You can bring up a witness’s prior conviction to impeach if:

· Carries over 1 year in prison (must also make 403 finding: prejudicial v. probative)

· Crime of dishonesty (comes in automatically, no 403)

· Can’t bring it up if 10 years has passed since either conviction or release (whichever is later). However, if 10 years has passed and the court may let it in under certain circumstances.


Example:


Defendant is on trial for armed robbery that happened in January 2018. He has a prior conviction for armed robbery in November of 2013. The defendant plans on testifying and the prosecutor wants to ask the defendant about his prior armed robbery on cross examination. Before he can do that, the judge must weigh the probative value versus the prejudicial effect of allowing that impeachment evidence in. Armed robbery is not a crime of dishonesty.

Same facts above, except the defendant’s prior record consists only of a shoplifting charge from April 2017. The prosecution wants to ask the defendant about this shoplifting on cross examination. Because shoplifting is a crime of dishonesty, the conviction will come in automatically.


Case Law:


“Thus, we hold that for impeachment purposes, crimes of ‘dishonesty or false statement’ are crimes in the nature of crimen falsi ‘that bear upon a witness's propensity to testify truthfully.’ United States v. Smith, 551 F.2d 348, 362–63 (D.C.Cir.1976) (‘[I]n its broadest sense, the term ‘crimen falsi’ has encompassed only those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth.’ (emphasis added)). Armed robbery, therefore, is not per se probative of truthfulness.” State v. Broadnax, 414 S.C. 468, 476, (2015) (citation omitted).