*2 WALD, Circuit Judge: A convicted jury Michael Lipscomb of possession of heroin with intent to distrib- ute, and he now appeals. Lipscomb did not *3 defense; testify in his own so, had he done government would have impeached his with an credibility eight-year-old robbery conviction under Rule of the Fed- eral Rules Evidence. Three other de- fense witnesses did testify were and impeached by prior felony convictions. ruling these convictions satisfied Rule 609(a)(l)’s requirement pro- that “the bative value admitting this evidence out- weighs its effect to the defend- ant,” the district court only had before it crimes, dates, and, names their for the defendant Lipscomb, his when age was robbery committed. Lipscomb contends that without some in- formation on facts and circumstances underlying prior conviction, the district court cannot determine whether the convic- tion is of a witness’ at or, probative, all if proba- it is whether the tive value of the conviction its outweighs prejudicial effect. The con- tends that district court not does Goldblatt, Washington, H. D.C. Steven inquire need to into the cir- facts and whom (appointed by Court), this with Sam of a cumstances conviction in to order Dash, D.C., on the Washington, uel brief, was probativeness balance against prejudice, but appellant. for permitted should not be to do so. We hold Tucker, Atty., B. Asst. Wash Marc U.S. (1) all convictions that the Rule meet D.C., Harris, ington, with whom S. Stanley 609(a)(1) threshold are at least somewhat Atty., Farrell, Michael and Robert U.S. W. credibility; (2) court trial Cornell, Washington, Attys., B. Asst. U.S. has discretion decide how much back- D.C., brief, Regi on appellee. were for information, ground any, per- needs McGranery, Atty., na C. Asst. Wash U.S. 609(a)(l)’s form Rule balance of probative- D.C., ington, also entered an appearance defendant; ness against appellee. (3) and the district court did not abuse discretion in case. We therefore affirm’ Judge, and ROBINSON, Chief Before the conviction. MacKINNON, WIL- TAMM, WRIGHT, EDWARDS, GINS MIKVA, WALD, KEY, Judges. Background SCALIA, Circuit and BURG, BORK I.
A. Facts for the Court filed Circuit Opinion Lipscomb was charge tried twice on a WALD, Judge ROB- Judge possession which Chief of heroin with intent to distrib- INSON, WRIGHT, Judges and Circuit ute under 21 841(a)(1). U.S.C. The first § TAMM, WILKEY, EDWARDS, MIKVA, trial in a hung jury; ended led second GINSBURG, concur. BORK and to a SCALIA conviction.1 He was sentenced two (1981)), Lipscomb count later but this was dismissed also tried and convicted heroin, 33-402(a) Judgment possession government’s and motion. See § D.C.Code (now 33-502(a) § codified at D.C.Code trials, Gallogly Lipscomb searched At both Officer years imprisonment. to six deter- plastic packets, 25 white found the defense offered later prosecution heroin, and in cash. mined to contain $820 the events radically different versions of of heroin on packets He also found seven Thus, leading Lipscomb’s arrest. Gallogly’s the floor of the Buick.4 Officer was cen- credibility of the defense witnesses Barrows, was not in Mark partner, Officer tral to the case. see the earlier heroin transac- position to Thomas Gal- prosecution, For the Officer tions, Gallogly had but confirmed that logly testified that on the afternoon of Lipscomb’s pockets.5 found heroin in 6, 1981, plainclothes, March while in he ob- his own behalf at Lipscomb testified on on the corner of parked served a blue Buick testify at the first trial but did not Streets, Northwest, Ridge Dis- Fourth spent He stated that he most second trial. Columbia, heavy trict of an area known for home with question of the afternoon in narcotics traffic. The car was surrounded Rovetta Wil- girlfriend, his mother and his *4 Gallogly several men. saw one of the by friend, to a liams. He had loaned his car money the car and approach pass men Smith, drop off the Daryl by who came the driver in return through the window to then the car Lipscomb car. drove object, Gallogly for a small white which Smith, off drop mother’s house to Smith’s was heroin. Two more suspected bag house, and re- off at her dropped Williams followed, Gallog- apparent transactions up mother’s house to turned to Smith’s pick objects that were ex- ly did not see the Lipscomb him home. As Smith and take changed. Gallogly identified the driver as car, Gallogly Officers and got out of Lipscomb.2 the defendant asked for his driv- approached Barrows and that he Lipscomb After stated blocks, er’s license. then drove several Lipscomb license, him had no the officers searched car, again, stepped out of his and parked They cash but no heroin. also and found began talking Gallogly, to someone. who car, but did found no heroin inside car, got in his out and had followed own trunk; bag from the paper remove a brown approached Lipscomb. Lipscomb turned bag. Lipscomb nothing knew about around, Gallogly, saw and immedi- Officer to New York he trip The cash was for a mouth, ately object removed an from his girlfriend take with his Wil- planned to ground, stepped it on the and on it. dropped Lipscomb’s story was corroborated liams.6 time, At the same smelled Gallogly Officer mother, girlfriend, by his his by his burning marijuana. He identified himself friends, Smith, friend and two other police Lipscomb as a officer and asked Little, who claimed Floyd and Robert Green license, Lipscomb re- his driver’s which to the arrest.7 eyewitnesses to be Gallogly that he had no license. then plied object Lipscomb Lipscomb’s retrieved the had government impeached eight- it an dropped, probably concluded that at the first trial with credibility have marijuana cigarette, Lipscomb and arrested conviction and would year-old robbery at the second trial posses- credibility a license and for driving impeached without had testified.8 The also marijuana.3 if he sion of 27-29, Trial, May 31, 1981), Transcript (July Record 6. of First Order Commitment I”), (“Tr. 112-17. at item 29. Trial, 18-22, Transcript of Second June 2. (Mary Lip- II, supra at 126-29 7. Tr. note (“Tr. II”), generally at 26-33. We will cite II) Williams), (Rovetta scomb), 166-69 133-37 transcript (Tr. be- of the second trial Little), Smith), (Floyd (Daryl 220-24 195-201 only appealed here. cause trial is from Green). (Robert 33-39. 3. Id. at (first trial); I, supra Tr. 128-29 note 8. Tr. (statement Judge II, supra at 279 note 4. Id. at 39-46. trial). Oberdorfer) (second 234-44. Id. at credibility period elapsed with a 1980 of more than ten has impeached Smith’s conviction, credibili- robbery armed Green’s since the date of the conviction or of the after ty accessory with a 1976 conviction for release of the witness from the confine- Little’s credi- manslaughter, the fact to imposed ment for that which- conviction.9 The bility robbery date, with a 1976 ever is later unless the court limiting in- gave appropriate district court determines ... value structions, proper- Lipscomb’s attorney supported by specific of the conviction of the convic- ly requested exclusion substantially facts and circumstances out- tions, post-trial before trial and in a both effect. weighs its motion for a new trial. ruling probativeness Lip- to Admit Decision District Court’s B. scomb’s conviction outweighed prejudi- the Prior Convictions effect, cial court knew the name of Lipscomb the offense (robbery), date of conviction (1973), Lipscomb’s age when the crime Lips The district court admitted (16).10 was committed The court did not eight-year-old robbery comb’s crime, know the details of Lip- whether into evidence under Rule scomb had pled guilty or not guilty, or the 609(a) Federal of Evidence. Rule Rules sentence imposed; inquired had but the states-: prosecutor stated that he had no more in- GENERAL purpose RULE. For the formation.11 The court Lip- found that attacking witness, of a evi- scomb’s robbery conviction was proba- dence that he has been convicted of a *5 tive because anyone “desperate enough to crime shall be admitted ... but rob somebody desperate ... enough to lie (1) the crime punishable by was death or stand,”12 on the witness and because “the imprisonment in year excess of one under Defendant’s testimony important will be so convicted, the law under which he was to his defense.”13 The court did not discuss proba- and the court determines that the prejudice, extent of but did state for tive value of this evidence out- the record that “the probative value of ad- weighs effect to the de- mitting this outweighs evidence the preju- fendant, (2) dishonesty involved or dicial effect.”14 statement, false regardless punish- ment. In making ruling based on limited 609(b) an exception creates to Rule information, recognized the district court 609(a) prior for a conviction which is remote between, the tension in our cases on the one in time: hand, Crawford, United v. 613 F.2d States 1045, 1050-54 (D.C.Cir.1979)(Wald, J.), and,
TIME LIMIT. Evidence of a conviction
hand,
Jackson,
under
this rule is not
if a
admissible
on the other
United
v.
States
supra
denied,
II,
2,
(Smith),
909,
crimes),
9. Tr.
cert.
note
at 186-87
219
412
U.S.
93 S.Ct.
(Little),
(Green).
2294,
230
But see
United
36
975
L.Ed.2d
Harvey,
1201,
(8th
States v.
588 F.2d
1203
adult;
Lipscomb
10.
was tried as an
thus the
1978) (court
Cir.
excludes
conviction for
special
609(d)
conditions in Rule
for admission
juvenile
crime committed while a
without dis
“juvenile adjudications”
are not relevant.
cussing whether
was tried as an
the defendant
Ashley,
975,
See United States
v.
F.2d
adult).
denied,
(5th Cir.),
853,
cert.
439 U.S.
99 S.Ct.
163,
(1978);
United States v.
1979.19 3. Motion for a New Trial a man at gunpoint Smith had robbed and
The district court was unsure whether car; also stolen his he was convicted after adequately it had supported its decision to pleading not Little guilty. younger and his prior convictions, admit and therefore brother man gunpoint, had robbed a at with suggested convicted, that if Lipscomb were Little stating got gun, punk, give “I’ve ought defense counsel “give op your me an me money”; he was convicted after portunity to review this pleading further on a motion not guilty. part Green had been II, supra (discussing Court, 15. Tr. note at 164 19. See Memorandum to the Record item robbery conviction); III, supra 4-5; Smith’s see Tr. at Memorandum in Aid Government’s (discussing Lipscomb’s note at 11-17 Sentencing, rob Record item 1. It also ¶ bery conviction). appears Lipscomb by Virginia was wanted petit larceny by Maryland for and for armed II, supra 16. Tr. note at 156. robbery. Government’s Memorandum in Aid Sentencing, supra, light Congress’ 1. In If possible Id at 279. It is that the trial court only prior determination Rule 609 that con explained why probative- at the first trial impeach victions can be used to a witness’ outweighed ness of Green’s conviction credibility, presumption and of the in our crimi Unfortunately, to the defendant. prov nal law that a defendant is innocent until relevant discussion between the court and guilty, pending charges en the existence of does I, supra counsel was not transcribed. See Tr. probative Lipscomb’s not increase the value of note at 102. prior conviction. II, supra 18. Tr. note Moreover, group 18-year-old
of a who had robbed an none. during the three-week in- boy; group another member of the had trials, terval between first and second group killed the boy stabbed and background made no effort to obtain any then home. The principal fled to Green’s despite Judge information Oberdorfer’s re- stabbing first-degree was convicted of quest for it at the first trial. At the second pleading guilty accessory murder. trial, Judge again Oberdorfer asked for manslaughter, after the fact he “ex- more information and the re- pressed no regret” explained plea sisted, claiming that the information was by stating my “all of witnesses for up stood “unnecessary”: the government.”20 THE you get COURT: Have tried [to
The district court all this concluded from jackets the case in the prior convictions]? stronger that “there are even reasons than No, I MR. CORNELL: have not. I knew at the time the con- Well, THE you COURT: see if can. victions,” and denied the motion for a new MR. CORNELL: One of the reasons is trial.21 necessary.... we don’t view it as THE ... Ap- COURT: Court of [T]he 4. The Government’s Reluctance to Pro- these, peals probably will have I vide Further Information on Con- any why don’t see reason I should have victions to— Under Rule 609(a)(1), prosecu of Appeals MR. CORNELL: Court probative tion must show that the value of jackets. will not have outweighs the prejudice Well, they THE COURT: will if [de- so, to the defendant. If it cannot do puts fense them into the record counsel] Cong.Rec. evidence is excluded. See support of his motion new trial. 40,891 (1974) (statement Rep. Hungate, them; you get necessarily can not See manager House floor for the Rules of Evi today .... dence) (the placed Conference Committee I get MR. CORNELL: will endeavor to “the on the proponent burden of such evi them.23 probative dence to show that value outweighs of the conviction C. Issues Presented Smith,
effect”); United
States
(D.C.Cir.1976).22 major
359-60
A
sub-
Crawford,
Lipscomb, relying on
contends
theme in this case is the
at
prosecution’s
the circumstances of
knowing
that without
tempt
persuasion
to minimize its burden of
cannot,
the district court
by insisting the district court should
cases,
exceptional
in all but
determine if the
look behind the name and date of a
at all
conviction is
proba
conviction to determine how much
Therefore,
it is.
pros-
or how
value it has.
tive
*7
ecution, which has the burden of establish-
ing admissibility, must submit such evi-
any
The
did not
introduce
it,
background
prior
admitting
information on the
convic- dence. Without
the conviction
trial, stating
tions at the first
it had
is an abuse of discretion.24
also
Lipscomb
Court,
Vanderbosch,
supra
20. See Memorandum to the
note
But see United States v.
610 F.2d
19,
(Smith),
95,
(burden
defendant;
(Little),
(Green).
(2d Cir.1979)
at 2-3
7-10
11-13
con-
trary legislative history
discussed)
(citing
II,
2,
30,
supra
(July
1981).
21.
note
at 318
Tr.
inapposite cases).
Rivers,
52,
22.
United States v.
693 F.2d
Accord
II, supra note
at 285-86.
23. Tr.
1982);
Gross,
(8th
54 n. 3
Cir.
United States v.
curiam);
(9th Cir.1979) (per
.12-17; Supplemental
Appellant’s
Hayes,
(2d
Brief at
F.2d
United States v.
Appellant
Lipscomb
denied,
Cir.),
Brief
at 1-20 & n. 13.
cert.
98 S.Ct.
submits,
Mahone,
example
“exceptional”
(1977);
as an
of an
United States v.
L.Ed.2d
inquiry
(7th Cir.),
further
would be unneces-
case where
recent, unrelated,
prior
sary,
series of
con-
U.S.
II. The Probativeness Convictions face, Rule on its strongly implies deciding whether the district that a per conviction is se inquire court must into the facts and cir for certain kinds crimes. The cumstances underlying a language of the Rule also weakly suggests question whether, threshold under Rule that all felony years convictions less than 10 609(a)(1), felony all convictions less than 10 old have at least some value. major Supplemental plus 609(b)’s victions for exception felonies.” convicted” 609(a) to Rule Appellant Brief for period at 19. for crimes where “a of more than elapsed ten has since the date of the Appellant’s Brief at 21-26. conviction or of the release of the witness from *8 imposed the confinement for that 12-15; Appellee Supplemental 26. Brief for at whichever is the later date.” See 18 U.S.C. 2-21, Appellee Brief for at 29-32. We will 1(1) (“Any punishable by offense or § death phrase “felony hereafter use the convictions imprisonment exceeding year for a term one is years less than 10 609(a)(l)’s requirement old” as shorthand for Rule felony.”). a “pun- that the crime be by imprisonment ishable death or in excess of Appellee Supplemental 27. Brief for at 33-34. year one under the law under which he was
1057
directly upon
609(a)(2),
Rule
conviction
crimes “that bear
the ac-
Under
any balancing
“shall be admitted” without
propensity
testify truthfully”31
cused’s
probativeness against prejudice,
and re-
which,
they
and offenses
while
have “some
gardless
punishment,
of the
the crime
bearing
credibility,”32
on an individual’s
“dishonesty
involved
or false statement.”28
automatically
should not be
admitted into
Drawing the line between crimes that
in-
evidence.
“dishonesty
volve
or false statement”
on which our
question,
The harder
easy,
crimes that do not is not
as numerous
directions,
cases
in different
is wheth-
point
cases
this29 and other circuits30 attest.
609(a)(1) incorporates
congression-
er Rule
It is
implausible
Congress believed
al belief that all
convictions less than
felony
crimes
are
falling on one side
line
so
probative
10
old are somewhat
probative
they
should be
impulse (e.g.,
credibility,
even crimes of
as-
regardless
prejudice
admitted
sault, purse-snatching, perhaps shoplifting).
falling just
crimes
on the other side of the
Crawford,
the district court ruled that a
line
in some cases not be
at
may
conviction was
prior shoplifting
admissible
all. More likely, Congress anticipated that
based
on the name and date of the
crimes
(e.g-., smuggling, burgla-
of stealth
crime. We found this information insuffi-
ry),
quite
“dishonesty
while not
crimes of
cient; without a factual
“the dis-
inquiry,
statement,-”
false
do reflect
lack of credibili-
simply
trict court
could not determine how
ty
signifi-
and should be admitted unless
Indeed,
court,
probative (if
all)
cantly prejudicial.
shoplifting
Crawford’s
609(a)(2),
construing
implicitly
propensity
Rule
has
rec-
have been on her
ognized
by distinguishing
as much
between
to tell
the truth.”
court’s decision to admit a that determines suggesting ter conviction without that an admitting outweighs this evidence inquiry background defendant, into the facts and cir- (2) effect to the prejudicial necessary. statement, cumstances of the crime was dishonesty involved or false recognized manslaughter We that is “not regardless punishment. of the crime,” particularly veracity-related but added.) The (Emphasis phrasing “shall be “congressional relied on the determination if,” only plus phrase admitted but crime, felony, may such a as a “the value,” suggests pri- that all probative 609(a)(1).” admissible under Rule 627 F.2d or convictions meet a threshold relevance Lewis, at Similarly, 1210.34 in 626 F.2d at requirement, but must nevertheless be eval- 12, 949 n. we found that the name and date prejudicial uated their effect of a prior narcotics conviction was suffi- linguistic defendant. This inference would ruling cient basis for the district court’s pre-Rule understanding accord with the 609 outweighed in probativeness felony that all convictions were somewhat charge.35 a trial on a new narcotics probative credibility.36 It would also be language gives of Rule two Congress’ understanding consistent with Rule, felony small clues. convic- Under prior felony prose- that “the conviction of a tions old less than 10 may always cution witness be used [be- shall be admitted [properly prejudicial can be no effect to introduced] cause] [t]here only cross-examination but if
during
the defendant.”37
ny,
pioneered
approach
“like multifarious others of a similar na
36. We
the dominant
in
ture,
States,
763,
bearing
(D.C.
simply
no
on the
348 F.2d
has
whatever
Luck v. United
768
”
felony
propensity
testify truthfully.’
1965) (trial judge
prior
‘accused’s
Cir.
exclude
Fearwell,
771,
prejudicial
United States
595
776
“the
effect of
v.
F.2d
conviction where
(D.C.Cir.1978) (Wright, J.) (quoting H.R.Rep.
impeachment
outweighs
probative
far
rele-
(Conf.Rep.),
conviction”)
Cong.,
prior
No. 1597
93d
2d Sess. 9
vance of the
and Gordon v.
(1974),
States,
936,
reprinted
Cong.
(D.C.Cir.1967),
in 1974 U.S.Code
&
United
383 F.2d
7098, 7103).
denied,
See
States
Ad.News
also United
cert.
390 U.S.
S.Ct.
Beahm,
(4th Cir.1981)
(1968) (burden
persuasion
664 F.2d
L.Ed.2d 287
is on
(prior
perverted
why prior
conviction for “unnatural and
defendant
to show
bearing”
practices”
any
excluded).
sexual
has “minimal if
should be
See 3 J. Weinstein & M.
Ortiz,
credibility);
on
782,
United States v.
553 F.2d
Berger,
(1981)
Weinstein’s Evidence
609[03]
¶
(2d Cir.) (Mansfield, J., dissenting)
law).
(surveying pre-Rule 609 case
The Luck-
(district
inquire
underlying
court must
into
approach
prior
Gordon
assumes that a
convic
prior
facts “to determine whether
probative
credibility;
[defendant’s
tion is
it will be ex
value”),
probative
had
narcotics conviction]
only
cluded
if the defendant shows unusual
prejudice.
L.Ed.2d 183
concluding,
recognize
In so
we
the statement
Gordon,
“[a]cts
F.2d
Jackson,
the district court was
fact
generally
direct
violence ...
have little or no
underlying
aware of the
circumstances because
veracity.”
say
bearing
honesty
But to
on
brought
defense counsel
attention,
them to the court’s
bearing”
have no “direct
on
that violent crimes
veracity
any
facts tended to
those
rebut
say
they
bearing.
not
have no
belief that the
conviction was
Moreover, any
that felonies involv-
statement
credibility.
Jackson had shot and killed his
bearing
veracity
ing
at all
violence have no
wife and “had also shot the man who was with
admitting convic-
would be inconsistent with
his wife at the time.”
instructed
witness,
not to
its own
Procedure Act of
Pub.L.
Criminal
No.
apparently
co-conspirator
91-358,
133(a),
14-305(b)(l),
who was
sec.
84 Stat.
§
cert,
defendant),
910,
(codified
14-305(b)(l))
at D.C.Code §
(1979).
The case of witnesses other than the adopted Judiciary House Com- accused, mittee version. was felony], only The House debate does not if the [a suggest a probative consensus on whether all felonies court determines that the value have some Supporters outweighs value. of of this evidence course, automatic admissibility argued, of effect. that all felonies were probative of credibili- (Senate Judiciary H.R. 5463 Committee ver- “ ty because, e.g., entail ‘they substantial sion), 609(a) floor, theOn Senate § injury to and disregard rights of the of debated, provision again was and re- ”43 persons.’ other Representative And jected by margin a narrow in favor of the Smith, the chairman of the House subcom- automatic admission rule of the D.C.Code: mittee principal spokesman and the for the prior shall be admitted if [A conviction] subcommittee version giving discretion to only elicited from . .. but [a witness] judge, explained trial that the subcom- (1) felony] (2) the crime in- [a mittee proba- had “no doubt that there is statement, volved or false dishonesty re- tive value in the previous evidence of felo- gardless of the punishment. nies,” but was prejudice concerned about 37,076 (1974) (statement Cong.Rec. of
the defendant if all prior felonies were ad- McClellan). Sen. However, mitted into evidence.44 Repre- Dennis, substantial proponent suggests sentative Senate debate principal of limiting impeachment support for the view that all felonies are to crimes of dishones- statement, ty degree. or false of to some A argued many other minority felonies had “no connection to believed that a [the credibility at all.”45 may bearing” sometimes have “no on credi- witness’] Cong.Rec. (statement (statement Dennis). Id. at 2377 Rep. 43. 120 of of Oth- Rep. Hogan) (quoting Proposed however, supporters position, Fed.R.Evid. 6- er of this 09(a) note, advisory primarily prejudice committee 46 F.R.D. have been concerned with (prelim, 1969)); (state- see id. at 2381 (statement draft to the defendant. See id. at 2379 Lott) Rep. (prior felony ment of convictions are Rep. Wiggins) (“There my is serious doubt evidence of character and “the character of a possible mind ... that it is for a man to receive witness is material circumstantial evidence on committed, jury fair trial if the he has knows question veracity”). of ... example, molesting.”). the crime of child (statement Smith). Id. at 2378 Rep. House, But convictions are bility.46 supporters peculiarly probative as in the “[s]uch admissibility (who majori- automatic were a credibility.” Id., 1974 Cong. U.S.Code -& Senate) ty necessarily believed that added). Third, (emphasis Ad.News addition, probative47 all felonies were the Committee determined that “the ” explained Judiciary Hart Senator prejudicial effect to the defendant was to felo- Committee had chosen to exclude weighed against probative value. Id. to the ny prejudice convictions because (emphasis original). For other witnesses defendant, crimes were not because such danger “the ... out- [was] credibility: irrelevant question weighed the need for the trier of fact to recognized Committee have as much relevant evidence on the issue *12 for ... serious crimes are conviction[s] credibility possible." (emphasis Id. totally not irrelevant as to whether the Thus, added). the Committee must have truth, since do telling they witness is the prior felony assumed that convictions are toward the rules of reflect attitude indeed relevant evidence.49 game. the history wholly satisfying. This is not 37,078 Id. at statement of (prepared Sen. Congress ques- never focused on the narrow Hart) (emphasis original).48 tion whether all felonies have at least some report sug- The Conference Committee probative value the issue of credibility. on' gests accepted that the Committee the Sen- Also, Committee, with a Conference all felonies are understanding prior ate from, variety of earlier drafts to choose probative credibility degree. to some ambiguous (prior chose the final text con- First, ver- the Committee took the Senate only victions “shall be admitted ... but starting point; “adopt[ed] sion as its it ... value probative an Senate amendment with amendment.” outweighs prejudicial effect”) evidence H.R.Rep. Cong., No. 93d 2d Sess. language over clearer House (1974) reprinted Cong. in 1974 & U.S.Code Advisory subcommittee Committee Second, 7102 (“Conf.Rep.”). Ad.News (a prior drafts conviction “is admissible ... its rule not as explained Committee danger unless ... of unfair permitting judge prior the trial to exclude value”) outweighs probative and the felony be they may convictions because not negative language 609(b) (a clearer Rule probative, removing judicial but rather as conviction over 10 old is “not admissi- years involving discretion over convictions ”). or dishonesty false statement because ble unless ... 37,079 37,081 (statement Burdick) (“if (statement of Sen. Id. at of Sen. But see id. at Hart) young early (“We say, respect an man stole an automobile at with to witnesses other accused, convictions, age, though felony, perhaps yes; it was a it has no than the with 37,080 accused, that, bearing” credibility); (state- respect only on cf. id. at convictions fact, Kennedy) (“a prior go credibility.”). ment of Sen. conviction for truth and in an unrelated crime that does not involve dis- honesty likely false to be statement no 49. There was discussion of Conference guilt”). of the defendant’s Committee version of Rule 609 on floor of 40,069-70. Cong.Rec. at the Senate. See 120 37,076 (statement light
47. See id. at
of Sen. McClel
The brief House discussion sheds little
lan) (“Can
really
argued
mem-
be
that the fact that
the Rule. Two Conference Committee
did, however,
person
understanding
has committed a serious crime —a
bers
state their
Rule,
felony
prior felony
bearing
he
that under the
“the
convic-
no
on whether
would
—has
37,077
may always
prosecution
willing
jury?”);
tion of a
witness
be
be
to lie to a
id. at
40,891 (statement
Rep.
(statement
Hruska)
(“A person
Hun-
used.”
Id. at
of Sen.
who
gate,
manager
felony
loansharking
House floor
for the Rules of
would
such as
commit
40,894
Evidence);
(statement
Rep.
hesitancy
lying
see id. at
greater
un
have no
about
Dennis) (“[N]ow
can cross exam-
previously
a defendant
than an individual who had
der oath
any
of his
ine a
witness about
involving
convicted of a crime
dishones
been
convictions;
felony
always
previous
he can
do
37,080
ty.”);
(statement
at
of Sen. Thur
id.
it,
any
prejudice him in
because that will not
mond).
way.”).
an important
degree. However,
Moreover —and
caveat —we
evidence that a witness
deliberately
have
used the phrases “some-
is a convicted criminal can also seriously
what probative” or “probative to some de- prejudice
defense,
especially when the
gree” for no stronger statement could be witness is the defendant himself.
Congress
made.
recognized, and it is obvi-
jury
is told to consider the defend
ous, that some prior convictions have little
ant’s
conviction only on the issue of
relationship
while others are
credibility and not on the overall issue of
highly probative. For example,
609(b)
guilt.
limiting
But
instructions of this type
Congress’
reflects
belief that “convictions
require
jury
perform
“a mental gym
over ten
generally
old
do not have
beyond,
nastic which is
not only
pow
their
much
S.Rep.
value.”
ers, but anybody’s else.” Nash v. United
Cong.
U.S.Code
& Ad.News at 7061.50 This
States,
(2d
Cir.) (L.
implies that many 9-year-old convictions are
Hand, J.),
only slightly probative; probativeness does
III. into Facts the impeached by When defendant is and Circumstances prior conviction, a question the prejudice, of Part II established that all felony Congress knew, if, convic- as well is not but how probative tions are of credibility to some Congress much.53 in Rule there- H.R.Rep. 50. See behavior, also prior having U.S.Code behavior or no as Cong. (“after bearing credibility.”). & Ad.News at 7085 ten probative the value of the conviction ... [has] point III, longer supra diminished to a it where should no Tr. note at 5. admissible”). Compare, e.g., Cong.Rec. (state- recognizing felony Smith) 51. For statements Rep. (“there that some ment of is no doubt that only slightly probative testimony previous convictions are unduly of credi- felonies could bility, 37,079 Cong.Rec. (1974) (state- prejudice jurors”); (statement see 120 the id. at 2379 McClellan, principal Rep. (“There ment of Sen. Wiggins) my Senate is serious doubt proponent admissibility) (recog- possible automatic mind ... it is for a man to receive nizing potential jury need for “some measure of a fair trial if the knows that he has com- ..., example, mitted, example, limited discretion for in some the crime of child molest- involving juveniles”); (statement 37,078 ing.”); cases (prepared id. id. at statement Burdick) (“This Hart) (“most Sen. agree is not all black and white. of Sen. of us would that the just say prior potential prejudice defendant, We cannot against that we should use all for ex preference fore instructed the courts to admit evidence mise between the House felony “only conviction if ... all convictions unless the cluding of a “dishonesty court determines that value crime involved or false state outweighs this evidence its preference ment” for admit and Senate prejudicial effect to the defendant.” prior felony partic all convictions. ting ular, legal presumption there can be no part, In this we consider how much infor- To the admissibility. contrary, noted judge perform mation the trial needs to earlier, government the burden is on the To meet its justifying balance. burden of show that value of a convic admission of the effect to the outweighs tion at a minimum must furnish the district v. defendant. Accord United States Foun (to court with the name of the crime show tain, (7th Cir.), cert. it felony) date denied, S.Ct. (to show that the conviction is Cook, (1981); L.Ed.2d 854 United States years old). less than 10 At issue here is (9th Cir.1979) (en banc), when the district court can or must seek U.S. information, additional how much. (1980).54 L.Ed.2d 670 court Lipscomb argues that district usually inquire underlying must into the risk of when a There is less circumstances, govern- facts and while the than the defense witness other defendant argues ment the district court should conviction be- impeached through so. permitted not be to do jury directly cause the cannot infer the from someone else’s crimi- guilt defendant’s preliminarily We note however, may, nal record.55 The still jury carefully thought district court must presume guilt or lack of fully consider the information before dis- may unduly defendant association or probativeness outweighs preju determine if testimony. count the defense witness’ And balancing dice to the defendant. This must *14 609(a)(1) trial requires judge Rule still the leading inexorably not become a ritual to against prejudice to admitting prior probativeness the conviction into evi balance Rather, the con- dence. the final version of Rule to the defendant before 609(a)(1) compro- must be understood as a viction. himself, behalf, remark, however, testify in if he tries to in his own of that is exhausted our overwhelming”) (emphasis original); part is in id. at in II that all felonies have some conclusion 37,080 (statement Kennedy) (“all credibility. of Sen. au- probative value on the issue of agree greatest prej- reached, thorities that the source of balancing stage the nature Once prior felony udice to a defendant is a convic- compromise by reached the Conference with, (statement tion”); e.g., Rep. id. at 2381 of precludes any presumption pri- Committee Lott) (“where danger there is unusual [of] felony convictions should be admitted. ..., prejudice remedy provided unfair[ ] general provision of rule [exclusion] Judiciary 55. The Senate Committee excluded [403]”); (statement Rep. Hogan) id. at 1415 felony per- all convictions of the defendant but (recognizing shortcomings “the of the tradi- prior felony judge to admit convic- mitted the admissibility]” tional of automatic [rule balancing anal- tions of other witnesses after a 37,077 seeing alternative); no better id. at ysis. explained: danger It of unfair “[T]he (statement Hruska) (“to of Sen. a substantial accused, prejudice greater when the is far degree, prejudice can be [to defendant] witnesses, testifies, opposed because to other instigated limiting] instruction”). [sic] [a merely jury may prejudiced not Lewis, question the ultimate but also on In at we no error F.2d found S.Rep. question guilt though or innocence.” court even district had stated 609(a)(1) Cong. strong presumption Ad.News at 7061. See “a 1974 U.S.Code & Rule created advisory opin- letting Proposed com- convictions.” But our also Fed.R.Evid. 1971) presumption; note, (rev. ion did not endorse such a rath- draft mittee 51 F.R.D. er, emphasized (“The we the district court’s of this in the use risk of unfair ordinary statement “must be read in its context.” Id. impeach is so witness method to 609(a)] stresses ad- subject We did state that scarcely “[Rule of com- minimal as to be a missibility 609(b)] while stresses inad- ment.”). [Rule missibility.” omitted). (footnote Id. The force Meaning
A. Plain in particular, imposed the sentence and the release date. comparison 609(a)(1) A of Rule Rule with 609(b) suggests 609(a)(1) that Rule strongly Moreover, 609(a)(2) a per Rule creates se require always does not the district court probativeness outweighs prejudice rule that inquire into the facts and circumstances “involving] for crimes dishonesty or false underlying prior felony conviction. Un- Often, however, statement.” the trial 609(b), der Rule a felony conviction more judge will not be able to determine from years than 10 old can be admitted the name of a crime whether the defend- “the probative sup- value of the conviction dishonesty ant’s conduct involved or false ported by specific facts and circumstances statement. All circuits that have con- substantially outweighs ef- own, question, including sidered the our added.) 609(a)(1), fect.” Rule (Emphasis have prosecution may held that the adduce contrast, does not require proba- bring specific facts tive value supported by conviction be 609(a)(2). within Rule United States v. specific facts and circumstances. We must Smith, (D.C.Cir. 364 n. 28 presume that the omission was intentional. 1976).56 It seems equally appropriate hand, the other
On
Rule
is permit the district court to elicit such facts
broadly phrased
require balancing
pro-
balancing
against preju-
probativeness
against prejudice,
bativeness
with
specif-
no
609(a)(1).
dice under Rule
ic instructions as to how the balance is to be
language
We conclude from the
of Rule
performed. The language
gives
of the Rule
609, then, that the
court can inquire
district
Congress
no hint that
preclude
intended to
background
into the
facts and circumstanc-
considering
district court from
all rele-
es, but need
so.
always
do
Because
609(b)
vant evidence. And Rule
shows Con- Rule does not indicate when the district
gress’ belief that
the “specific facts and
court should seek this additional
informa-
circumstances” of the
crime are rele-
tion, we further conclude that
the district
balancing inquiry.
vant to the
court has discretion to decide when it
addition,
609(b)
Rule
controls admis-
should do so.
sion of convictions for which more than 10
elapsed
have
“since
the date
Legislative History
B.
conviction or of the release of the witness
609(a)
from
imposed
the confinement
for that con-
viction,
Congress did not focus its attention on
whichever is the later date.” To
judge
inquire
when the trial
should
into the
determine if the defendant was released
*15
background facts and circumstances of a
ago
from confinement
less than 10 years
though
prior
legislative history
even
the conviction occurred more
conviction. But the
years ago,
judge
609(a) suggests
Congress prob-
than 10
the trial
must
of Rule
that
facts;
inquire
background
require
into some of the
intended neither to
the trial
ably
Dorsey,
practice);
56. See also United States v.
591 F.2d
Third Circuit
cf. United States v.
922,
(D.C.Cir. 1978);
696,
(4th
Cunningham,
Cir.1981)
935
United States
F.2d
699
638
Mehrmanesh,
822,
(9th
(defense
689 F.2d
833 & n. 13
counsel
failed to introduce
facts
Elk,
168,
Cir.1982);
prior
United States v.
682 F.2d
show that the
misdemeanor conviction of
(8th Cir.1982);
dishonesty
170 n. 3
United States v. Grand-
or
witness involved
mont,
867,
(1st Cir.1982);
statement).
680 F.2d
871
United
false
But see United States v.
Whitman,
313,
(10th
Lewis,
940,
1980)
(D.C.Cir.
(inter-
States v.
665 F.2d
626 F.2d
Cir.1981);
Cathey,
United States v.
591 F.2d
preting
require that the crime
(5th Cir.1979);
276 n. 16
United States v.
dishonesty
involve
or false statement
“as an
Papia,
(7th
1977);
560 F.2d
Cir.
United
statutory offense”) (emphasis in
element of the
Hayes,
(2d Cir.),
States v.
553 F.2d
original) (dictum);
Berger,
3 J. Weinstein & M.
denied,
434 U.S.
36, 609[04],
(“The
supra
statu-
note
at 609-75
[J
(1977);
Virgin
L.Ed.2d 143
Government of the
tory definition should control
...
[because]
Toto,
(3d
Islands v.
281 n. 3
requires
a rather mechanical
convenience
1976) (applying pre-Rule
Cir.
609 common law
omitted).
rule.”) (footnote
existing
noting
but
the Rule accords with
granted
broad discretion
to the district
judge
routinely inquire
into
back-
explanation
The
pre-
facts and circumstances nor to
court.
Committee’s
ground
in Luck
doing
quotes
from
so.
the Rule
our discussion
judge
clude the
the relevant
factors and then continues:
history begins,
review of that
once
Our
application
of Luck has been re-
States,
Luck v.
again, with
United
clarified in numerous subse-
fined and
Luck,
listed,
(D.C.Cir.1965).
we
as
which ren-
quent decisions
court
“might
factors that
be relevant” to
it,
[Gordon],...
notably
dered
district court’s decision to admit or exclude
Justice, Burger sug-
Judge, now Chief
prior
conviction:
be
gested in Gordon' various factors to
crimes, the
prior
length
the nature of the
considered ...:
of Gordon factors].
[list
record, the
cir-
age
of the criminal
609(b) impos-
It will be noted that
]
[Rule
defendant, and,
cumstances of the
above
specific
es a
time limit and that
[Rule
all,
impor-
it more
the extent
which
609(c)]
aspects
deals with
of rehabilita-
particu-
tant
to the search for truth in a
tion;
provisions
these
should be construed
jury
lar case for the
to hear the defend-
imposing
upon
as
outer limits
ant’s
than to know of a
con-
story
prior
judge’s determination and not
restrict-
viction.
ing his decision within them.
(footnote omitted).
But we also
Id.
609(a)
Proposed
advisory
Fed.R.Evid.
com-
emphasized
“inescapable
remoteness
note,
(rev.
F.R.D.
draft
mittee
appellate review” and the need for the trial
added).
1971) (emphasis
judge
light
to exercise discretion “in the
earlier,
ap-
the record as it
before him.” Id.
develops
discretionary
As noted
this
form the
proach
adopted
modified
States,
In Gordon v. United
1068 First, to seek deciding the district convictions before whether problems. be serious indictment, bring, or charges an which to fully capable taking possible court is bargain to offer.68 Fi- deciding plea what sort of a delay burden or into account in Second, unwilling to tell the trial nally, it we are how much information needs.67 cases, adequate without informa- may judge the district court be to decide many to important question of whether readily satisfied with available informa- tion the conviction, simply because the perhaps jacket the witness’ case admit a tion — presentence report, gather if available. in- finds it a nuisance to government Such the dis- satisfy formation was sufficient to the information. on the
trict court in this case. The burden Summary D. government to obtain this information slight, may outweighed by well be lan hold, on the sum, based we possibility Lipscomb that —as for 609, history, guage legislative of Rule strength- Green —the extra information will that the court has policy, and sound district government’s admit- argument en inquire to when to into discretion determine Also, ting the convictions. there need no underlying the facts and circumstances a delay government at all if the makes a and how extensive an in prior conviction practice of in- regular obtaining this basic We decline at this time quiry to conduct. join formation before trial. We the district guidelines for deter general establish urging court to do so. the name and mining inquiry beyond when II, supra See Tr. 2, (“as note at 283-84 a necessary, although date of a conviction practice matter of in the Attorney’s U.S. specific our discussion below of the convic ..., office you would be better served may tions at issue in this case shed some you would come in with more detail about light on the matter. We will review the a previous [e.g.], conviction ... part district decision as of our over court’s indictment”). copy of the all review of whether a decision deferential an to admit or exclude evidence is abuse
Third,
likely
extra information
is most
discretion.69
be important
for the defendant because
greater
is far
when the defendant
Admissibility
IV.
of the Prior
impeached.
himself is
But we find it hard
Convictions
imagine
prosecutor
conscientious
not
making
remaining question
a reasonable effort
to obtain at
is whether the
least some details of the
past
by
defendant’s
district court abused its discretion
admit-
defendant,
juana
plain
inquire
from
but it
error
into the facts and circumstances under-
inquire
crime).
agree
further
into the details of the
lying prior
conviction. But all
that the
ultimate
standard
review under Rule
609(a)(1) is whether
the district court has
is,
regard
67. The trial court’s discretion in this
abused its discretion. See United States v.
Mehrmanesh,
believe, adequate
govern-
we
rebuttal
822,
(9th
1982);
689 F.2d
834
Cir.
may
ment’s concern that
know until
273,
Foley,
(8th
683
278
United States v.
F.2d
shortly before trial
the defense witnesses
who
Rosales,
1982);
Cir.
United States v.
680 F.2d
Supplemental
Appellee
will be. See
Brief
1304,
(10th Cir.1981); United
1306
States v.
Grandmont,
867,
(1st Cir.1982);
F.2d
872
Knowledge
past
of the details of a
convic
Jones,
696,
(6th
United States v.
647 F.2d
prove helpful
impeaching spe
tion
also
denied,
898,
399,
Cir.), cert.
454 U.S.
102 S.Ct.
testimony
See,
e.g.,
cific
the defendant.
(1981);
Lipscomb
*20
meaning
robbery
within
“convicted”
plea,
Alford
therefore that an
We hold
contendere
pled
of Rule 609 because he
nolo
preclude
does not
subse-
plea,
like a nolo
maintaining
pursuant
while
his innocence
under Rule 609.
use of a conviction
quent
25,
Alford, 400
91
North
v.
U.S.
Carolina
Williams,
F.2d
v.
642
Accord United States
160,
(1970).74 We re
conscious
for the
rights
others.
objects to use of this ad
Lipscomb
strongly
Such conduct reflects more
than,
(1)
ditional evidence because
late
credibility
say,
impulse,
crimes of
submis
or
simple
sion of
weapons possession.78
discouraged
narcotics
evidence should be
age
conviction (eight years ago)
have
defense counsel could
used the
age
Lipscomb’s
when it was committed
evidence
him.80 The
to rehabilitate
first
(16) reduce the
probativeness of
convic-
well-taken,
point
future,
and in
we
hand,
tion. On
the other
expect
respond
government
promptly
trial,
central
to the
was not
court’s
request
district
back
especially great because the previous crime
ground facts and circumstances.
In this
was not
to the present
similar
one. Cf.
however,
case,
unwilling
we are
to punish
Gordon,
(“convictions
at 940
F.2d
which the
good
faith belief
*21
are for the same crime should be admitted
that it did not have to submit such informa
sparingly”).
Moreover,
tion.
even if
district
court
trial,
had
Rule
misapplied
we
4. Post-Trial Evidence
immediately
would not
a new
order
trial
to
would instead remand
the district
Any possible doubt on
propriety
court
to reconsider whether the
con
admitting Lipscomb’s prior robbery convic-
See,
viction
have
should
been admitted.
tion is
by
eliminated
the underlying facts
Crawford,
1053;
e.g.,
Smith,
his
second
De
credibility.79 This
subsequent conviction
fense
could
readily
enhances
counsel
have
obtained
the probativeness
Lipscomb’s
asking
earlier
himself
his
robbery
conviction
information
client
because it shows
that the
Moreover, Lipscomb
was not
an
few
robbery
merely
questions.
isolated
does
episode
see,
criminal
from
not
Lipscomb
explain,
which
we
how
has
cannot
defense
since been
Gordon,
rehabilitated. Cf.
383 counsel could have used information on Lip-
ly Comment,
Impeachment by Prior Convic-
approved
78. Other
have
circuits
admission of
Adjusting
tion:
609,
to Federal
prior robbery
Evidence
convictions based
similar ra
Grandmont,
416,
(1979)
United
(poli-
64 Cornell L.Rev.
tionales. See
States v.
428-31
680
cy
867,
support
approach).
(1st Cir.1982) (robbery,
reasons
F.2d
n. 3
872
as a
adversely upon
theft offense
credi
“reflect[s]
may require
explanation,
One circuit
com
an
Halbert,
bility”);
489,
States
United
v.
F.2d
pare
Preston,
United States v.
626,
608 F.2d
(10th Cir.) (“It
improbable
that one who
(5th Cir.1979) (remanding
639-40
for on-the-
gun
prove
rob a
undertakes
bank with
will
denied,
balancing),
940,
cert.
record
446 U.S.
person
high
to be a
who is
character
devoted
2162,
100 S.Ct.
scomb’s extensive criminal record to reha- bilitate him.81 could mean a conviction the crime. Such law-abiding per- that an otherwise merely B. Little family a close friend or had sheltered son police We also find no seek out the abuse of discretion member and failed to permit in the district court’s decision to in- person had been them that inform impeached by five-year-old Little to be a fight accident or volved in a hit-and-run robbery armed conviction. Little’s convic indicate might conduct in a bar. Such tion, in Lipscomb’s robbery stand; like the witness any propensity to lie on volves theft indicates a conscious disre hand, after the accessory On the other addition, gard rights for the of others. actively be based on fact conviction could arrest; eyewitness Little was an to the investiga- an police to misdirect lying to thus, important. More related to cred- closely tion —conduct that is over, presumably there was less Second, only the the record contains ibility. from Lipscomb admission of Little’s convic probativeness court’s bare conclusion Lipscomb’s tion than from the admission of defendant, outweighed prejudice own conviction. no of its reasons.82 with indication C. Smith question It would be a close wheth one-year-old Smith’s conviction for abused its discretion er the district court robbery properly armed was also admitted without Green’s into evidence. As to the con probativeness, in any reasons and without explaining its recent, theft, viction was involved and was *22 facts and circum quiry background into the Also, for a serious crime. credibili Smith’s Oakes, v. Compare stances. United States ty important was because he corroborated Cir.1977) (no of (1st abuse Lipscomb’s story that Smith had borrowed manslaughter con discretion to admit Lipscomb’s car earlier in the week and that the “credibility viction where was crucial to arrest, day on the of Lipscomb the had Gross, case”) with United States house, driven to mother’s Smith Smith’s (9th Cir.1979) curiam) (abuse (per house, dropped girlfriend off his at her and to narcotics convic of discretion admit returning pick up was to to take him Smith had explanation; government tions without Moreover, home when he was arrested. theory” why probative the also “offered no prejudice Lipscomb possible guilt due to outweighed value of the their convictions by especially association does not seem se prejudicial effect). Fortunately, we do not vere. question need to resolve that here. If we erred, D. Green the court we concluded that district normally would remand to the court to re Green, Little, For as for and credi- Smith consider, evidence, all the wheth light of bility important (Green was an eyewit- properly er the conviction was admitted. arrest) ness to the and to the Here, already the district court has made relatively defendant was low. Neverthe- ruling Lipscomb’s that determination in on less, the district court’s decision to admit new trial. The additional motion for a five-year-old Green’s conviction for accesso- that Green had post-trial evidence shows ry manslaughter after the fact to is trou- another member of part group, been of a First, bling for two reasons. one cannot 18-year- an which had robbed and stabbed degree proba- determine much about the then fled to accessory boy; group tiveness of a conviction for after old the members objection concerning Lipscomb analogous objection the makes an the same defects as post-trial justify Lipscomb admitting use of evidence to himself. Smith, the convictions of defense witnesses Green, objection and This suffers from supra accompanying text. 82. See note 17 and Little. (Op. 1056-1059). However, Given Green’s home.83 evidence resort- plain crime, ing meaning Green’s in the court of the words the participation the problem interpretation becomes consider- concluding did not abuse its discretion in difficult. ably difficulty less The court’s that was properly evidence admitted. interpretation apparent stems from an re- We prejudicial are mindful ef- to accept fully luctance the fact impeachment fect of of several wit- defense recognizes Rule the relevance of convictions by prior nesses en- convictions capital for all felonies crimes and on the jury may guilt hanced presume because the issue of the In witnesses. association from fact the de- Part analysis, opinion last V of the court’s frequently fendant associates with convict- recognition the reasoning reaches this However, considering ed felons. even expressed throughout rationale impeachment cumulative effect of the opinion may lead to considerable difficulty Little, Smith, Lipscomb, Green, we find performing the court counsel in abuse no of discretion. required balancing. opinion While the recognizes major the court crimes have V. Conclusion probative “some” value on the issue of cred- Rule of the Federal Rules ibility, body of the opinion contains a congressional Evidence embodies a belief number play- of statements that tend to felony that all convictions less than 10 probative capital down the value of crimes old have at least some value and felonies. credibility. the issue of The trial has court plainly that all provides felonies determine, discretion to based on cir- involving and misdemeanors1 dishonesty case, pro-
cumstances of each whether the and false statement are automatically ad- admitting bative value of a prior conviction mitted without balancing. Example: The outweighs effect to the de- felony perjury, false statement 'the fendant, has and also discretion deter- government, 18 U.S.C. § et seq., need mine how much information it needs to view, not be balanced. other my convic- balancing. case, perform this In this we timely tions for capital offenses and felo- find that the did court not abuse its discre- nies made are all admissible if the tion convictions of effect of defect in character of the *23 the defendant and of three defense witness- witness, represented as by the elements of es. The affirmed. convicted, the crime for which he was out- weighs prejudicial the to the effect defend- MacKINNON, Judge (concurring Circuit connection, Advisory ant. In this the Com- specially). Evidence, mittee’s Notes to the Rules by Supreme submitted the Court I concur in V of opinion Part the court’s Congress Rule that: recognize elsewhere, and in many of the statements weight of authority traditional has disagreement but because of my some with been to allow use of felonies generally underlying of its might rationale that un- regard par- without to the nature duly complicate application Rule, of the and of crimen falsi with- offense ticular I set forth my some of comments thereon. out of the regard grade offense. 93-46, Congress, House Document No. 93d I Session, February (emphasis 1st Meaning The Plain the Rule added). approved This was the view of its The court’s opinion deals with extensively Congress by Rule as submitted to the Su- legislative history appears con- preme to have And the rule finally Court. 609(a). siderable difficulty interpreting emerged Congress substantially Rule from supra. See States v. Mill accompanying United text note 20 misdemeanors see On ings, (D.C.Cir.1976). F.2d 121 Court, presented Supreme Despite lengthy legislative history
rule as by opinion, that is recounted in the court’s discussion, only balancing with added. See was that the lan- Congress end result infra. I would the Rule to interpret So 609(a), with we are guage of Rule which balancing] generally “allow of felonies [the concerned, here was not material- primarily added). (emphasis . ...” Id. ly presented by altered from that the Su- plain language Because of the of the Rule this, To illustrate the Rule as preme Court. Notes, Advisory and the I am Committee’s finally adopted, and as is set presented, forced to in the disagree with the statement only two words that were forth below. opinion language court’s that “the Supreme Court draft are deleted from Rule also weakly suggests felony that all [], in brackets and new matter enclosed convictions have at years less than ten old by Congress added is set forth in italics. probative (Op. 1056) least some value.” Impeachment by Rule 609. Evidence of (emphasis added). My disagreement is with Conviction of Crime the characterization of the Rule as a weak (a) purpose General rule. —For the suggestion. Rule 609 plainly states witness, attacking the evi- “evidence that of a he has been convicted that he has been convicted of a dence crime shall if the only be admitted ... but shall admitted if crime [is admissible] punishable imprison- crime was death by or by public elicited from him or established ment year in excess of one under the law during record cross-examination but convicted, under which he was and the (1) punishable by if the crime death court determines that value of one imprisonment year or excess admitting outweighs the evidence its he was con- under law under which ” prejudicial effect to the defendant . victed, the court determines that the plain This is a by Congress direct statement value of this evi- that all capital crimes and felonies “shall be outweighs dence effect balancing admitted” if the test is met. I defendant, dishonesty involved expression see no weakness in that of con- statement, pun- regardless or false rather, gressional the statement ishment. intent — opinion the court’s is an at- unsupported 609(a) the Congress Before amended Rule tempt express to weaken the direction of in Rule 4032 could al- balancing provided Congress. ways by objection be invoked a defendant’s As to the introduction of a conviction.3 transmitted the Chief Justice Rule 609 II “ad- provided convictions were missible,” 609(a) whereas amended Rule Legislative History states such evidence “shall be admitted.” After of consideration the Ad- 609(a) provides as enacted when ad- Committee, visory the Chief Justice of the mandatory mission is and Rule 403 contin- *24 States, by Supreme United direction of the provide to when exclusion is discretion- ues Court, Congress transmitted to the the Thus, intangible the nature of ary. given Rules of Evidence of the United States weighed, the elements of the crimes to be Magistrates and which had been Courts the nuances inherent in the inverse stan- adopted by the Supreme pursuant applied, mandatory Court to to be the di- dards 609(a)4 highly law. the dis- rection of Rule time, Supreme presentation 2. Rule 403 was not altered from the waste of or needless provides: evidence. Court' draft. It cumulative Although relevant, may be ex- evidence 14-305 offenses § In non-federal D.C.Code substantially cluded if its value is specifically provided admission of felo- for the outweighed by danger prejudice, the of unfair ny (84 550-51). Stat. convictions. issues, misleading of the or the confusion jury, by delay, recog- considerations of undue wording 609(a) only 4. The initial of Rule (cid:127) whereas, convictions, nized the relevance of two cretionary question standard Rule the narrow whether all felonies have (as proposed by Supreme rules the Court some on at least value the issue enacted) practical application and as are of credibility.” (Op. 1061) at (emphasis essentially equivalents. Con- functional added). implicit This statement is an ad- gress requiring thus the up ended admission Congress mission that never restricted the by a did convictions standard that Rule, general language i.e., of the all con- vary materially from the combination “punishable by victions of crimes death or of Rules 609 as by and 403 transmitted the imprisonment year,” in excess of one “shall ” Justice. since the only Chief And amend- if they balancing. be admitted survive By ments to the survived were those capital including offenses and felonies with- by made the Conference Committee the rest limitation, out none of which include any of the legislative history extensive irrele- is “dishonesty element of or false statement” 609(a) vant. As to Rule the Com- Advisory operation (a)(2), because of the Congress mittee’s most respects Notes in are more by the indicated scheme of the Rule that relevant. See extract therefrom at quoted veracity required related elements were not p. supra. The Conference Committee Thus, for such crimes to be balanced. the Report 1077, infra, quoted p. as is even probative value to be balanced flows from stronger. the elements of the crime and the magni- The persuasive argument admitting for character, tude of defect of individual generally,” all “felonies just and not crimes law, disrespect for flows from the elements, with veracity related made was of any major such crime. The by Senator McClellan: scheme the Rule implicitly therefore as- person who has committed a serious [A] sumes that convictions all such capital just crime —a felony readily as lie —will on offenses felonies bear credibility. under oath as someone who has commit- ted opinion, guise a misdemeanor The court’s under involving lying. Would a to rapist, deferring “compromise” convicted which cold-blooded oc- murderer or armed robber really Committee, hesitate curred in Conference fails to lie any under more person oath than a fully recognize meaning the plain of the previously who has [only] lied? aWould unanimously adopted by Rule as the Con- convicted murderer or robber be more ference Committee and enacted Con- person?5 truthful than such above, gress. Congress As shown did a Cong.Rec. circle complete returning 37076-77. A an- negative starting swer is posing point; indicated mere of the “compromise” nothing was more question. logic This was the common sense than a reversion to the Rule as transmitted from which Advisory Committee Court, Supreme from the with a minor Supreme proceeded Court and that ulti- balancing modification of Rule 403 added. mately prevailed Congress. Moreover, nothing there is in the so-called basis, “compromise” The court’s that constitutes valid opinion also states legislative altering “not history wholly satisfying” ordinary meaning of the “Congress Hence, because never plain focused on words Rule.6 dis- also, additionally quoted argued: having while the amended Rule did counsel as “He’d kill kill, directed suggest you, admission evidence of convictions I he’d he’d orders. subject balancing. Post, 5, 1983, This Washington direction is one indi- page lie.” March Congress strongly cation that ad- quoted favored the the trial A5. After defense counsel mission of convictions. “trya- had a that the case,” acquitted. ble but the defendant was Id. argued This defect of human character was *25 jury last week to the in the District trial Court adopted The Conference Committee Sen- Wilson, in United States v. 80- D.C.D.C. No. capital ate Amendment to include crimes and 200, conspiracy to murder. Defense counsel balancing. added This would felonies and lead challenged testimony government’s preference to a for the Senate intent as to the principal witness who had admitted he was crimes, capital nature of the admissible of- paid hired and a to commit murder. Defense must be a crime inquiry previous into while interest- legislative history cussion are logical possibilities stopped before ing largely inapplicable. is exhausted; call other the witness cannot and the story his witnesses to corroborate Ill call other witness party cannot opposing is disputed question it. The es to refute Balancing Application the Rule — The crime inquiry previous into a whether procedure to be followed As to (1) proof of the convic stop with should that the court can balancing, my it is view reason any witness or with tion of the it considers it information request any own be on his ably “protestations brief ordi- exercise its discretion. While needs to make. The he wish to half” which crime, the date of the name of the narily be materi will seldom second alternative the witness was and the date time-consuming or confusing more ally would be suffi- released from confinement first, judge duly the trial than necessary balancing, perform cient to discretion in his “considerable exercises request any the court has wide discretion evidence.” admitting rejecting or [Bra help- it would be information that considers States, U.S.App.D.C. cey v. United ful. 89] Therefore, the breadth of the recognizing that same considerations are Many of the discretion, that I would not fetter court’s of witnesses impeachment to the applicable inferring or that by specifying discretion to a considerable jury apply a also before judge which the any particu- procedure by should consider judge the trial extent to The consider- under the Rule. will balance unnecessarily lar factors because to do so Edgerton are as expressed by Judge ations judges Trial should narrows his discretion. when were written today they applicable in the placed straight jackets not be judge that the trial recognized when it was discretionary authority. of their It exercise discretion in had “considerable in many must also be remembered that Id. rejecting evidence.” transcript prepared and that trials no plain from the It can also be concluded by subsequent proof review a court of that while there is no language of the Rule very at trial conviction could be a offenses capital that all legal presumption majority In the consuming time adventure. automatically admissible the or felonies are of- statutory of cases the elements of the convictions directly timely Rule states by fense indicated the indictment and subject to shail be admitted of such crimes dates, togeth- the relevant jury verdict and cre- operates balancing.7 language This representations er such as defense with admission supporting burden ate an initial make, might normally counsel should must opposing admission party perform all the sufficient for the court the conviction will or evidence of overcome balancing fairly required. that is in the strong inference be admitted. balancing process to be carried out convictions favoring the admission of judge necessity must of have some by the supported is further of such crimes practical limitations. In United States v. Report: Committee Conference Boyer, (D.C.Cir.1945), capital convictions of evidence Such [of Edgerton respect wrote with Judge ex- only be crimes and should felonies] considering jury evidence needed of im- presents danger cluded where the effect of a conviction on a witness’ the outcome of influencing properly credibility. of fact the trier by persuading trial in order to the basis of generally agreed It the defendant on convict issues, criminal record. time and avoid confusion of save 609(b) reversed the initial burden is In Rule fenses and felonies. Notes Conference Com- premise mittee, provides initial Report as an No. 93-1597. since the Rule House “not admissible” unless convictions are admission. balances in favor of the court *26 Committee, Notes of Conference House Re- tions juries to directing them to confine port added). No. 93-1597 (emphasis their consideration of prior evidence of con- viction to the witness’ and not to
Finally, I strongly object to the state- guilt. The judges ment reason that such opinion the court’s did not that “the dis- trict court advocate eliminating such rule perhaps is because [should obtain] witness’ jacket case or presentence report high purpose of a trial is that it consti- ” .... (Op. 1068). With respect to de- tutes a search for truth and the rule of fendants both of these items would raise admissibility prior convictions serves that serious due process considerations. Judges purpose. Judge Hand Nash v. United cases, trying whether in a bench trial or States, (2d Cir.1932) ex- jury, with a should not have access to the pressed this opinion when he commented extensive details of a defendant’s furthers, that “the probably rather criminal record unless absolutely necessary. impedes, than the search for truth ... and Courts generally are not allowed to have perhaps excuses the device which satis- information until after a verdict has fies form while it violates substance.” been rendered. Trial judges can be influ- (Emphasis added). enced in their rulings by prior knowledge of nation, Every court in this except in Mon- extensive criminal records. It is submitted Hawaii, tana and admits prior convictions that a defendant’s rights are generally bet- to some impeach extent to the credibility of protected ter when the evidence surround- witnesses, IIIA, J. Wigmore (Chadbourn), ing prior convictions that is presented to Evidence, (1970 Supp.1982), § the court is limited to the bare essentials. all presumably give routine limiting in- statute, D.C. originally enacted Thus, structions. contrary to the desires of (31 1357), Stat. provided which for the those quote who the statements in an effort manner of proving a prior conviction, and to discourage admission of felony con- which is still applicable offenses, to D.C. victions, such efforts have not been success- could well be sufficient in most cases under ful; convicted felons are not generally per- Rule 609: pristine mitted to stand before jury with prove crime, conviction of it is not [T]o the same credibility as that of a Mother necessary produce the whole record of Superior. Fairness is not a one-way street the proceedings containing and in the legitimate search for truth it is a certificate, seal, under concern that one who testifies should not be clerk of the court proceed- wherein the allowed to appear as when credible ings had, were stating the fact of the major criminal suggests record of crimes cause, conviction and for what shall be that he is not. sufficient. Moreover, such evidence is not as prejudi- 14-305(c) D.C.Code § cial as some think. Those who try criminal IV cases generally recognize attacking jury witness before a because of a Limiting Instructions two-edged be a sword: statements Judge Hand and Jus- evidence; you unless can break down his tice Jackson which are quoted in opinion you will not do that hammering away for the court are frequently referred to but at his character.... seldom analyzed. The court’s opinion fol- greater There cannot be a mistake than lows that practice. (Op. at 1062). This suppose leaves the a man who is suffering inference that is unfair punishment crime, admit prior for a and who comes convictions of defendants. However, evidence, what into the significant give box to will not about those statements is that judges did not advo- believed because of his character. You cate eliminating practice will introducing generally regarded find that he is such evidence by limiting followed instruc- with sympathy begin jury with. The
1078 weigh major
will and criminals convicted and of the neces- scrupulously; evidence witnesses, naturally prosecution their attention will be drawn both for the sity defendant, If probabilities story. permitted appear of his and not be to towards these, yoii you cannot touch will make not be. they may as credible when in fact by referring little effect to his constantly sight of the fact They completely also lose misdeeds.... law, as a that our criminal when viewed whole, already affords the accused far more IIIA, Evidence, (Chadbourn), Wigmore J. other nation. rights any than do the laws of Harris, (1970) (quoting 980 R. Hints on § fact, respectable In is widespread there Advocacy) (emphasis added). Harris was justice opinion system that our of criminal referring testifying to a convict for a crimi- unfairly weighted is in favor of the criminal defendant, nal but the same observation many respects. present controversy, in The applies previously to a convicted felon testi- fying in focusing entirely upon admissibility his own behalf if he has a reasona- of ble defense on the facts. If a defendant prior convictions of defendants who are wit- defense, has a nesses, reasonable factual he will grew myopic out of a view and juries find that are conscientious and he can incomplete knowledge English prac- of trial prevail despite prior convictions of crimes. instances, that, tices in some restrict everyday juries It is an occurrence for to admission of convictions of defend- felons, accept testimony of convicted Yet, English ants. when an criminal trial is accomplices major and those of guilty viewed in its it is far less favorable entirety crimes, many of whom are to compelled to than criminal trials are in the defendants testify immunity under our statutes or un- suggest United States.8 Those who agreements der prosecutors with re- of adoption “improvements” isolated sulted in punishment. lesser procedures foreign jurisdic- criminal from citizens, complete tions should look to the criminal lawyers, legislators Some procedure “improve- to see to what extent judges upon they focus what to consider question ment’^?) justified is when the play necessary fair for the criminal purely viewpoint. rights society from a technical and defendants are con- They sight entirely lose society’s right to have sidered. might possible
8. While Great Britain be more restrictive 373. After a certain time it is also to verdict,” Parker, impeach “majority accept in the use of convictions to a Lord C.J. cases, (1967) proof Cr.App.R. defendant in some when a criminal trial burden 454. The compared guilt beyond (that in Britain is to one in America our is not doubt a reasonable procedures provide phrase outlawed) jury a trial that is much more is “feel example, guilt,” (1930) Cr.App.R. favorable to the comparisons: For defendant. a few sure of Rex v. Rees 35; 14; England (1953) Cr.App.R. In criminal trials in Rex v. Summers judge “summing up” may (1969) comment to the Walters v. A.C. 30. If the Queen jury testify, imputations on the failure of the defendant to attack the defense involves on (1898) 77; prosecutor Rex v. Rhodes Rex v. Voisin the character of the or the witness- Q.B. (1918) judge proper prosecution, 1 K.B. 531. The in a case es for the then convictions may convict, jury Ferguson direct a Rex v. Evi- the defendant are admissible. Criminal (1970) 410; Cr.App.R. they l(b)(ii). prose- and that should dence Act s. Whether acquit, argue jury depends not but should decide whether the de- cutor will the case to the guilty manslaughter, depends fendant is of murder or extent the case. It on the Larkin, 174;’ 18; Cr.App.R. put Rex v. K.B. Rex accused in an affirmative defense. Rex has (1964) Cr.App.R. Bryant Oxley (1978) v. Black 52. The bad char- 307 C.A. Crim.L.R. event, may any judge performs acter of the defendant be admitted for the less more or jury person “summing up” to consider the likelihood that a that function in the case when above, authority, with such would character commit the offense. he has the wide discussed l(f)(i). charge Criminal Evidence Act s. comment on the evidence and to charge jury appropriate court can for conviction and conviction in an case. These are period just practice, after a reasonable of deliberation the a few of the differences from our jury required they is to be unanimous. Practice but wrong are sufficient to illustrate that Parker, C.J., argue adopt proce- Direction issued Lord that we should Cr. App.R. 454. Two hours be considered as dure related to one isolated feature somewhat Act, 1974; period. practice ignore reasonable Juries Practice of British the context 916; England. Cr.App.R. Direction W.L.R. which it exists and is used
Conclusion primary purpose a criminal trial truth, jury’s search and the determi- *28 of a
nation witness’ is one of its
most essential 609 is duties. Rule directed task, juries
to this should be denied
critical evidence that on bears this determi- failure,
nation balancing, when
recognize the full force of convic- of capital
tions crimes felonies. I find the
respect its face to be clearer and more than forceful the court’s Scalia, Judge, dissenting Circuit filed a opinion willing to recognize. No so-called opinion. “compromise” in the legislative history in way
any restricts the force of all major crimes to be which are considered balancing
in the process under Rule
609(a)(1). major crimes, Convictions of
even those that do not include veracity-re- elements, represent
lated a defect of char-
acter the individual that bears strongly
on his credibility as a witness. I would also
point out that the Rule vests the judge trial
with a wide weighing discretion in pro- value
bative of pripr convic- However,
tions. process because due
considerations and to avoid unnecessary tri- delay,
al evidence of prior criminal activity
of the defendant in the balancing offered
process should be limited to the minimum judge necessary. considers
UNITED of America STATES RICHARDSON, Appellant. D.H.
Robert
No. 81-2029.
United Appeals, States Court of
District of Columbia Circuit.
Argued 4, 1982. Oct.
Decided March
As Amended March Palmer, D.C.,
Allan Washington, M. appellant.