Rule 609: Many standards and burdens

Updated: 6 days ago

I always thought Rule 609 was one of the simpler rules when it came to evidence. Well, after reading State v. Robinson I realized how little I know about this rule (and probably quite a few more). In a lengthy opinion, Justice James explains how a trial court should properly allow impeachment of witnesses using prior convictions.

I will skip over the procedural history of this case and go straight to the holding by the Court. First, the opinion explains the different scenarios for introduction of prior convictions:

The Court then explains what the standard is for letting in the prior conviction and who carries the burden for that standard.

Confused yet? I am.

Justice James, in his opinion, did a great job of explaining these different scenarios and factors:

Rule 403 Standard

One thing that Rule 609 really does differently, is how it uses the rule “probative v. prejudicial.” Let’s look at the main rule for Probative v. Prejudicial – Rule 403:

Notice this standard: “probative value is substantially outweighed by … unfair prejudice.” This means that relevant evidence might be exactly 50/50 probative and prejudicial, but it can still come in. it also seems to mean that the evidence might be somewhat more unfair than probative, and it still comes in. However, if the evidence is substantially more unfair than probative, it does not come in.

Rule 609 Standards

Now let’s look at the different standards 609 has created.

Scenario 1, the standard is simply 403, which means the conviction comes in unless it is substantially more prejudicial than probative.

Scenario 2, the standard is “that the probative value of admitting this evidence outweighs its prejudicial effect.” This is a 50/50 scale and I believe it is analogous to a civil burden of proof: preponderance of the evidence, greater weight, etc. The burden seems to be on the probativeness (sp?) of the evidence and if it is equal to or less than the prejudicial effect, then it does not come in. It must outweigh (even by a grain) the unfairness, then it can be allowed in.

Scenario 3, is easy (famous last words). If the conviction is a crime of dishonesty, then it automatically comes in. However, the issues that arise with this part of the rule are whether or not the conviction is a crime of dishonesty (Armed robbery was thought to be a crime of dishonesty, but it is not; see Broadnax). If it is debatable whether the crime is one of dishonesty or not, then I would recommend that the judge still conduct a 403 test under Scenario 2 just to be safe.

Scenario 4 - this involves old convictions and appears to have the highest standard: “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” This seems to be the flip of Rule 403. Under 403, the probative value must be outweighed, while under this rule, the probative value must substantially outweigh.

Colf Factors

Ok, so we are all extremely confused now, so let’s take our confusion one step further and add in the Colf test. These factors should be considered by the trial judge when determining whether to let in a prior conviction (while at the same time using the standard and burden for each scenario):

1) The impeachment value of the prior crime

2) The point in time of the conviction and the witness's subsequent history

3) The similarity between the past crime and the charged crime

4) The importance of the defendant's testimony

5) The centrality of the credibility issue


To sum up, there are 4 scenarios where a prior conviction might come in:

And for those who like images:

Proposed Solution

Here is my proposed solution (still a work in progress):

Either way, I'm going to need to update my evidence books...

© 2021 by Everyday Evidence


  • LinkedIn Social Icon
  • Twitter Social Icon
  • Facebook Social Icon
  • LinkedIn Social Icon
  • Twitter Social Icon
  • Facebook Social Icon