Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE 609 (Prior Convictions)

Woodlands Criminal Defense Attorney - Brian Foley

Rule 609 is probably the most famous and well known of the 600s. There are some nuances that are either forgotten or never learned but we will be going over all of them here in this article. This is a really important rule to know in the criminal field. The reason is because Rule 609 discusses how you may impeach a witnesses credibility based on a prior conviction for a felony or misdemeanor moral turpitude offense. Moral turpitude means a crime that relates to bad character. For example a speeding ticket is a misdemeanor crime, but it could hardly be said to show a bad moral character. One odd distinction is that an assault of a woman perpetrated by a man is considered moral turpitude but an assault of a man perpetrated by a woman is not! Talk about a double standard. The most obvious version of the crime of moral turpitude is theft. It has been accepted for may years in the law that a person who steals is not trustworthy as a witness and the jury may know about prior misdemeanor theft convictions.

So how about a theft from 11 years ago where the witness got 3 days in jail and a fine as a punishment?

Well you've got a misdemeanor moral turpitude crime so you should be good right? Wrong. Subsection (b) of rule 609 puts a 10 year limit. If the conviction were 9 years old you could offer it if the probative value of the evidence outweighs its prejudicial effect to a party. If 10 or more years have passed since the witness's conviction or release from confinement, whichever is later, then the conviction is only admissible if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. Because "substantially outweighs" is thrown in there, the effect is that there is a 10 year limit to impeaching a witness with a prior conviction.

The same 10 year rule applies for a felony. However Felonies do not require a moral turpitude nature.

So what about a conviction that is 15 years old when the witness has another conviction that is only 8 years old? Well the courts of the State of Texas, in contravention of the plain language of rule 609 have decided that there should be "tacking." This means that if you have less than 10 years between convictions and you have at least one within the last 10 years then you can "tack" the older ones onto the new one and introduce convictions that could be 20 or 30 years old. This would assume many many convictions on the part of your witness. Check out this article on tacking for more information. https://www.baylor.edu/doc.php/246015.pdf

Some other important parts of this rule are that if the conviction is currently on appeal then it cannot be used for impeachment under 609 and you cannot impeach other than to get an admission from the witness or show it through a public document. The rule therefore by its language seems to exclude calling their momma or ex-girlfriend to the stand to say they were convicted.

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) In General. Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

(b) Limit on Using the Evidence After 10 Years.

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment;

(2) probation has been satisfactorily completed for the conviction, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; or

(3) 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 only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

(e) Pendency of an Appeal. A conviction for which an appeal is pending is not admissible under this rule.

(f) Notice. Evidence of a witness’s conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence.

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