24/7 call for a free consultation 212-300-5196

AS SEEN ON

EXPERIENCEDTop Rated

YOU MAY HAVE SEEN TODD SPODEK ON THE NETFLIX SHOW
INVENTING ANNA

When you’re facing a federal issue, you need an attorney whose going to be available 24/7 to help you get the results and outcome you need. The value of working with the Spodek Law Group is that we treat each and every client like a member of our family.

Client Testimonials

5

THE BEST LAWYER ANYONE COULD ASK FOR.

The BEST LAWYER ANYONE COULD ASK FOR!!! Todd changed our lives! He’s not JUST a lawyer representing us for a case. Todd and his office have become Family. When we entered his office in August of 2022, we entered with such anxiety, uncertainty, and so much stress. Honestly we were very lost. My husband and I felt alone. How could a lawyer who didn’t know us, know our family, know our background represents us, When this could change our lives for the next 5-7years that my husband was facing in Federal jail. By the time our free consultation was over with Todd, we left his office at ease. All our questions were answered and we had a sense of relief.

schedule a consultation

Blog

How FRE 609 Allows Impeachment With Prior Convictions

March 21, 2024 Uncategorized

 

How FRE 609 Allows Impeachment With Prior Convictions

The Federal Rules of Evidence (FRE) contain various rules about what kind of evidence can be presented in federal court trials. One of these rules, FRE 609, specifically allows the admission of evidence of a witness’s prior convictions in order to attack their credibility. This is known as “impeachment by prior conviction.”

Basically, FRE 609 means that if a witness has been previously convicted of a crime, especially a crime involving dishonesty, the opposing attorney can bring this up in order to undermine the witness’s credibility. The idea is that someone who has committed crimes in the past, especially lying or fraud, might not be trustworthy on the witness stand either.

When Prior Convictions Can Be Used

FRE 609 establishes two different standards for using prior convictions depending on whether the witness is the criminal defendant or just a regular witness:

  • For regular witnesses, felony convictions and convictions involving dishonesty or false statements are fair game to be brought up under FRE 609 regardless of how recent they are. The rationale is that this helps assess the witness’s credibility.
  • For criminal defendants, prior felony convictions are admissible only if the probative value outweighs the prejudicial effect. Also, evidence of prior convictions cannot be brought up if more than 10 years have passed since the conviction or the defendant’s release from confinement, whichever is later.

So in other words, prosecutors have more leeway to bring up prior convictions of other witnesses, but face stricter limits on bringing up the defendant’s own criminal record. This balancing test is designed to avoid unfair prejudice from making the defendant look like a career criminal when that’s not specifically relevant to the case at hand.

How FRE 609 Gets Used in Court

The most common way FRE 609 gets used is when an attorney is cross-examining a witness and asks something like “Isn’t it true that you were convicted of wire fraud in 2009?” This immediately casts doubt on the witness’s honesty.

Defense attorneys also frequently use FRE 609 to undermine the credibility of key prosecution witnesses like police officers. For example, if a police officer witness has prior excessive force complaints or convictions, the defense attorney could impeach the officer’s testimony by bringing up their dubious past conduct. This doesn’t mean that the officer’s testimony has to be excluded, but it gives the jury a reason to doubt their credibility.

Christine Twomey
Christine Twomey
2024-03-21
Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.
Brendan huisman
Brendan huisman
2024-03-18
Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!
Guerline Menard
Guerline Menard
2024-03-18
Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️
Keisha Parris
Keisha Parris
2024-03-15
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
Taïko Beauty
Taïko Beauty
2024-03-15
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!
Anthony Williams
Anthony Williams
2024-03-12
Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.
Loveth Okpedo
Loveth Okpedo
2024-03-12
Very professional, very transparent, over all a great experience
Bee L
Bee L
2024-02-28
Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.
divesh patel
divesh patel
2024-02-24
I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Requirements for Using Prior Convictions

While FRE 609 gives attorneys a lot of latitude to bring up prior convictions, there are some specific requirements that must be met:

  • The conviction must be for an actual crime with all required elements – accusations, arrests, or parole violations don’t count.
  • Minor infractions like traffic tickets or municipal code violations generally don’t count.
  • Juvenile adjudications usually can’t be brought up.
  • Details of the crime generally can’t be brought up – just the fact of conviction, the charge, and the punishment.
  • Convictions can only be brought up on cross-examination, not during direct testimony.
  • The attorney must have a good faith basis to believe the conviction exists – they can’t just go on a fishing expedition hoping to find dirt.

Additionally, judges have discretion under FRE 403 to exclude prior convictions if they find that the prejudicial effect substantially outweighs any probative value. So while FRE 609 swings the door open, FRE 403 acts as a counterweight to preserve fairness.

Strategic Uses of FRE 609

Beyond just attacking a witness’s credibility, skilled attorneys also use FRE 609 strategically for other advantages at trial, including:

  • Plea Negotiations – Prosecutors may agree to drop or reduce charges to avoid creating future impeachment ammunition down the road under FRE 609.
  • Witness Management – Attorneys prepare their own witnesses to get ahead of any convictions that could come up under FRE 609.
  • Case Theory Selection – FRE 609 will guide attorneys toward fact patterns and defenses that minimize the impact of their client’s criminal record.
  • Jury Persuasion – Skillful use of mugshots, fingerprints, and conviction details under FRE 609 can influence juror perceptions.

So in many cases, seasoned litigators don’t just blindly rely on FRE 609 by itself, but integrate it into their overall trial strategy. Both sides have to anticipate how prior convictions could sway the jury one way or the other.

What Types of Crimes Can Be Used?

While any felony is fair game for regular witnesses, FRE 609 singles out a few particular categories of crimes as especially relevant to credibility and thus exempt from the 10-year time limit that otherwise applies for defendants. These special categories include:

  • Perjury or False Statement – The logic here is obvious: someone who lies under oath may lie again.
  • Fraud or Deceit – Someone convicted of defrauding others clearly has issues telling the truth.
  • Embezzlement – The theory here is that willingness to steal company funds evinces dishonest character.

So for any witnesses previously convicted of fraud, perjury, embezzlement or false statements, the conviction remains fair game for impeachment no matter how long ago it occurred. The implicit assumption is that these types of crimes directly undermine credibility regardless of when they happened.

That said, judges have considerable discretion to exclude even perjury or fraud convictions if they find the probative value is substantially outweighed by prejudice under FRE 403. So no prior conviction provides an automatic basis for impeachment—it just comes down to the judge’s trial management judgement.

Crimes NOT Involving Deceit

On the other hand, prior convictions for crimes not clearly involving deception may have minimal probative value in assessing witness credibility. Examples could include drug offenses, sex crimes, or crimes involving violence. The logic is that a propensity for violence, for example, doesn’t necessarily translate into willingness to lie under oath. There may still be some tangential relevance, but the prejudicial effect often predominates.

That said, creative attorneys can often find ways to argue that almost any prior conviction reflects on veracity in some way. So judges have to carefully weigh each conviction under FRE 403 before deciding whether to allow or exclude it. There are many grey areas here.

Impeaching Your Own Witness

An interesting wrinkle with FRE 609 is that technically attorneys can use it to impeach even their own friendly witnesses if they unexpectedly turn hostile. This avoids putting words in the witness’s mouth but allows extracting some benefit from their testimony.

By impeaching their own witness with prior convictions, the attorney signals to the jury not to trust them too much. This can deflate the impact of harmful testimony. So FRE 609 provides a safety valve allowing lawyers to attack their own witnesses’ credibility when necessary.

Example Cross-Examination Using Prior Convictions

To see FRE 609 in action, here is an example cross-examination of a prosecution eyewitness to a hypothetical robbery:

Defense Attorney: You testified earlier that you saw my client stealing a woman’s purse at night in the park, correct?

Witness: Yes, that’s right.

Defense Attorney: How far away were you when you witnessed this alleged crime?

Witness: About maybe 20 or 30 feet.

Defense Attorney: Now isn’t it true that you were convicted of felony check fraud back in 2015?

Witness: Um yes, unfortunately.

Defense Attorney: And that conviction was for knowingly writing bad checks?

Witness: Yes.

Defense Attorney: No further questions, your honor.

This skillful use of FRE 609 plants seeds of doubt about the witness’s honesty and eyesight while avoiding bullying a sympathetic victim. By exposing the felony fraud conviction, the defense attorney tarnishes the witness’s credibility without ever directly attacking them.

Balancing Probative Value Against Prejudice

While FRE 609 swings open the door to prior convictions, judges can put a stop to abusive uses that seem unduly prejudicial. Under FRE 403, the court has discretion to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”

For example, a 20-year-old felony fraud conviction may have little current bearing on the witness’s credibility. Hauling out their criminal past could unfairly divert attention from the real issues and lack any probative value. Excluding remote or minor convictions as prejudicial thus provides an important counterweight to FRE 609.

Factors Judges Consider

To balance probative value against prejudice, common factors judges consider include:

  • – The impeachment value of the prior crime.
  • – The date of the conviction and witness’s subsequent history.
  • – The similarity between the past crime and charged crime.
  • – The importance of the witness’s testimony.
  • – The centrality of the credibility issue.

This multi-factor balancing test gives judges broad flexibility to allow impeachment when genuinely probative yet exclude misleading or distracting convictions. Reasonable minds can differ on where to draw the line in any given case.

Strategic Considerations

Skilled litigators use FRE 609 strategically, not just reflexively. Wise attorneys think carefully before opening the door to prior convictions, even if the rules technically allow it. Sometimes destroying a witness’s credibility comes at too high a cost.

And if the witness has multiple convictions, the attorney must strategically pick which ones to highlight and which to downplay. There are often tradeoffs to manage in determining which convictions will resonate most with the jury.

The risks of impeachment by prior conviction are especially acute for criminal defendants. Savvy defense lawyers may file motions in limine to exclude prejudicial convictions under FRE 403 or stipulate to sanitized descriptions of past crimes rather than letting the ugly details spill out.

Prosecutors must also tread carefully with FRE 609 and not let tunnel vision about the defendant’s criminal past distract from proving the current charges. There is often a tipping point where harping too much on convictions, no matter how damning, yields diminishing returns with the jury.

So FRE 609 should not be viewed as an unfettered license to attack every witness’s credibility. Counsel must thoughtfully weigh each conviction before pulling the trigger.

Conclusion

In summary, FRE 609 serves an important truth-seeking function by allowing impeachment of witness credibility using prior convictions. However, this rule also carries inherent risks of unfair prejudice. Balancing these competing concerns falls heavily on the trial judge’s shoulders.

Lawyers You Can Trust

Todd Spodek

Founding Partner

view profile

RALPH P. FRANCHO, JR

Associate

view profile

JEREMY FEIGENBAUM

Associate Attorney

view profile

ELIZABETH GARVEY

Associate

view profile

CLAIRE BANKS

Associate

view profile

RAJESH BARUA

Of-Counsel

view profile

CHAD LEWIN

Of-Counsel

view profile

Criminal Defense Lawyers Trusted By the Media

schedule a consultation
Schedule Your Consultation Now