TITLE SIX — WITNESSES
Rule 609. Impeachment by Evidence of Conviction of Crime
Generally. A party may seek to impeach the credibility of a witness by means of the court record of the witness’s conviction or a certified copy, but may not make reference to the sentence that was imposed, subject to Rule 403 and the following requirements:
Misdemeanor. A misdemeanor conviction cannot be used one month from the date on which sentence was imposed, unless the witness has subsequently been convicted of a crime within six months of the time he or she testifies.
Felony Conviction Not Resulting in Committed Prison Sentence. A felony conviction where no sentence was imposed, a sentence was imposed and suspended, or a fine was imposed cannot be used after two months from the date of conviction or from the date of sentencing, unless the witness has subsequently been convicted of a crime within six months of the time he or she testifies.
Felony with Prison Sentence Imposed. A felony conviction where a sentence to a prison was imposed cannot be used after six months from the date of sentencing, unless the witness has subsequently been convicted of a crime within twelve months of the time he or she testifies.
Effect of Being a Fugitive. For the purpose of this section, any period during which the defendant was a fugitive from justice shall be excluded in determining time limitations under the provisions of this section.
The Excluded Period. The period excluded by this subdivision is either or both of: (i) the period beginning upon the entry of an order finding the witness to be a fugitive from justice under 6 R. Stat. § 131.505 and Rid. R. Crim. P. 33, and ending upon the entry of an order granting relief from fugitive status under 6 R. Stat. § 131.506 and Rid. R. Crim. P. 33; and (ii) the period beginning upon the entry of a criminal default under 6 R. Stat. § 131.501(i) and Rid. R. Crim. P. 18.2, and ending upon the vacatur of that default or the witness’s appearance or return to custody, whichever is earlier, that being the period during which the witness “remains a fugitive following the entry of a default” within 6 R. Stat. § 131.501(i). Where the two periods overlap, the overlap is counted once. Both orders are recorded with the State Recorder as 6 R. Stat. § 131.507 requires, and either is proved by the court record or a certified copy under subdivision (3)(a).
Persons Covered. This subdivision applies to any witness whose conviction is offered, whether or not that witness is a defendant in the proceeding in which the testimony is given.
Burden. The party offering the conviction bears the burden of establishing the excluded period.
Procedure for Offering a Conviction.
Method of Proof. A conviction is proved by the court record of the conviction or a certified copy. The record of a court of this State, attested by the clerk or other officer having charge of the records under the court’s seal, is self-authenticating under Rule 902(1), and may be evidenced as Rule 1005 provides. A conviction may also be established by the witness’s own admission upon cross-examination. No other extrinsic evidence of a conviction is admissible.
Bar on Reference to the Sentence. Neither counsel nor the witness shall refer, in the presence of the fact finder, to the sentence imposed, to the length or place of any confinement, to any fine, or to any term of probation or community control. Where a fact within this bar is necessary to determine which limit of subdivision (1) applies, it shall be established to the court outside the presence of the jury, and, in a trial without a jury, upon the record before the evidence is offered.
Scope of Permissible Inquiry. The inquiry is confined to the name of the offense of which the witness was convicted, the court in which the conviction was entered, and the date of the conviction. Inquiry into the facts underlying the conviction is not permitted under this rule, and evidence of those facts is governed by Rule 404(2).
Notice; Advance Ruling. A party intending to impeach a witness by a conviction shall give notice of that intention, and of the convictions to be used, to the adverse party and to the court before the witness is called. Where the question can reasonably be anticipated, it shall be raised by a motion in limine before trial, as Rule 103(6) provides, and the appellate consequence of a failure to object at trial is governed by Rule 103(2).
Determination Outside the Hearing of the Jury. The admissibility of a conviction shall be determined outside the hearing of the jury, as Rule 104(3) requires. The court shall state its ruling and the ground of it upon the record.
Limiting Instruction. Upon timely request, the court shall restrict the evidence to its proper scope and instruct the fact finder accordingly, as Rule 105 requires. A conviction admitted under this rule bears upon credibility only, and, where the witness is the defendant in a criminal case, shall not be considered as evidence that the defendant committed the offense charged.
Multiple Convictions. Where a witness has more than one conviction usable under subdivision (1), the court may limit the number that may be used, and shall do so where the cumulative effect would be to place the witness’s character, rather than credibility, before the fact finder.
Balancing Under Rule 403. A conviction admissible under subdivision (1) shall nevertheless be excluded where its probative value upon the witness’s credibility is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Where the witness is the defendant in a criminal case, the court shall exclude the conviction where its probative value upon credibility is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed, consistently with Rule 404(2)(b). In applying this subdivision the court shall consider:
the bearing of the offense upon truthfulness, a conviction of an offense involving fraud, dishonesty, deceit, or false statement being of the highest probative value upon credibility;
the nearness or remoteness of the conviction within the limits fixed by subdivision (1);
the similarity of the offense of conviction to the offense or conduct at issue in the proceeding, a substantial similarity weighing strongly against admission;
the importance of the witness’s testimony to the case; and
the centrality of the witness’s credibility to the issues to be decided.
Matters That Are Not a Conviction Under This Rule. None of the following may be used under this rule, referred to in the presence of the fact finder, or assumed by any question:
an arrest, a charge, an accusatory instrument, or a probable cause finding not resulting in a conviction;
a conviction entered upon a plea of nolo contendere;
an adjudication of a civil or vehicular infraction, an infraction not being a crime;
a conviction that has been reversed, vacated, or set aside;
an arrest vacated upon motion of the Attorney General under 6 R. Stat. § 131.608 and Rid. R. Crim. P. 38.2, the record of which is expunged by order of the court; and
a conviction or record which has been expunged or sealed, as subdivision (7) provides.
Pending Appeal. A conviction otherwise usable under subdivision (1) is not rendered unusable by the pendency of an appeal. The pendency of an appeal may be shown, and evidence of it is admissible upon the weight to be given the conviction. Where the conviction is thereafter reversed, vacated, or set aside, subdivision (5)(d) applies and the party who offered it shall so inform the court.
Expungement.
Effect. A conviction, arrest, or other criminal history record which a court has ordered expunged or sealed under 6 R. Stat. §§ 131.601–131.607 and Rid. R. Crim. P. 36, 37, and 38 shall not be used to impeach a witness under this rule, shall not be referred to before the fact finder, and shall not be assumed by any question put to any witness. An expunged record is likewise unavailable under Rule 404, Rule 608, and Rule 613.
Testimony of the Witness. A witness who denies the existence of an expunged record, or who answers that the witness has not been convicted of a crime the record of which has been expunged, does not thereby testify falsely and shall not be impeached by contradiction, nor prosecuted under R.C.C. § 2.10 upon that answer.
Conditional Expungement. Where the court has conditionally authorized an expungement upon the completion of a community service program under 6 R. Stat. § 131.602 and Rid. R. Crim. P. 38, the conviction remains usable under subdivision (1) until the court enters the expungement. Neither the pendency of an expungement petition nor the imposition of a condition is admissible.
Duty of the Offering Party. A party who knows or learns that a record has been expunged shall not offer it and shall withdraw an offer already made. The offering of an expunged record is a violation of these rules for which the court may impose the sanctions available under Rule 103(7) and under Rid. R. Civ. P. 11 or Rid. R. Crim. P. 48.
The Fact of Expungement. That a record has been expunged is not admissible for any purpose to attack or support the credibility of a witness.
Pardon; Clemency; Restoration of Rights.
Clemency Is Not Expungement. Executive clemency granted by the Governor under 6 R. Stat. § 131.609 does not operate as the expungement of a criminal offense, as 6 R. Stat. § 131.609(a) provides. Except as subdivision (8)(b) provides, a conviction remains usable under subdivision (1) notwithstanding a pardon, a commutation of punishment, a remission or suspension of the collection of a fine or forfeiture, or a restoration of civil rights under 6 R. Stat. §§ 131.609 and 131.611, and Rid. R. Crim. P. 38.1 governs the proceedings by which clemency is sought and recorded.
Pardon upon a Finding of Innocence. A conviction shall not be used under this rule where the Governor has granted a full pardon upon a determination that the person did not commit the offense of which the person was convicted.
Proof of the Clemency. Where a conviction is used and clemency has been granted as to it, the witness or the party calling the witness may prove the fact and the terms of the clemency, which is established by the decree filed with the Secretary of State under 6 R. Stat. § 131.609 or by the court record. A commutation, remission, or suspension of a fine or of punishment shall be proved outside the presence of the fact finder where proof of it would disclose a matter within the bar of subdivision (3)(b).
Computation of the Periods.
Continuous Time. Every period fixed by subdivision (1) runs continuously from the event stated, in Coordinated Universal Time, without regard to court days, weekends, holidays, or any filing cutoff, as Rid. R. Civ. P. 6 and Rid. R. Crim. P. 46 provide.
Month Defined. For the purposes of subdivision (1), a month is a period of thirty (30) days.
The Recency Exception. The period fixed by the concluding clause of each paragraph of subdivision (1) is measured backward from the moment the witness testifies, and the subsequent conviction relied upon must have been entered within that period. The subsequent conviction need not itself be usable under subdivision (1).
Proof of Dates. The date of conviction and the date on which sentence was imposed are proved by the court record or a certified copy under subdivision (3)(a).
Convictions of a Party’s Own Witness. The party who calls a witness may not impeach that witness by evidence of a prior conviction, as Rule 607(1) provides. This rule confers no authority to the contrary.
Application. This rule governs the use of a conviction to attack the credibility of a person who testifies. It does not govern:
the use of a judgment of conviction to prove a fact essential to that judgment, which is governed by Rule 803(5);
the use of a crime, wrong, or other act for a purpose permitted by Rule 404(2)(b);
the qualification of a grand juror under 6 R. Stat. § 131.103; or
the admissibility of a defendant’s conviction at sentencing or in a proceeding to revise or revoke a sentence.