Rule 609 Impeachment by evidence of conviction of crime. (a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is inadmissible except when the crime is one involving dishonesty. However, in a criminal case where the defendant takes the stand, the defendant shall not be questioned or evidence introduced as to whether the defendant has been convicted of a crime, for the sole purpose of attacking credibility, unless the defendant has oneself introduced testimony for the purpose of establishing the defendant's credibility as a witness, in which case the defendant shall be treated as any other witness as provided in this rule.

(b) Effect of pardon. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a pardon.

(c) Juvenile convictions. Evidence of juvenile convictions is admissible to the same extent as are criminal convictions under subsection (a) of this rule.

(d) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. [L 1980, c 164, pt of 1; gen ch 1985]

 

RULE 609 COMMENTARY

 

This rule departs markedly from Fed. R. Evid. 609 for two reasons: (1) existing Hawaii law, based upon due process considerations, requires that defendants in criminal cases not be impeached with prior convictions, and this limitation is incorporated in Rule 609; and (2) the history of federal Rule 609 makes clear that, as finally approved by Congress, the rule was addressed, in significant measure, to the issue of impeachment of defendants in criminal cases. In addition, Fed. R. Evid. 609 is confusing, ambiguous, and awkwardly worded. It purports to mandate the admissibility of certain kinds of prior convictions, thus embodying a questionable exception to Rule 403's discretionary balance, and directs a discretionary, probative value/prejudicial effect judicial determination for other kinds of prior convictions, thus needlessly duplicating the Rule 403 principle. It also establishes an arbitrary, ten-year time limit for usable prior convictions, without regard to the nature of the crime.

This rule supersedes Hawaii Rev. Stat. 621-22 (1976) (repealed 1980) (originally enacted as L 1876, c 32, 57; am L 1972, c 104, 1(q)), which provided for discretionary receipt, for credibility assessment of all witnesses other than criminal accused, of evidence of "felonies, or of misdemeanors involving moral turpitude." This statute was authoritatively construed in Asato v. Furtado, 52 H. 284, 292-93, 474 P.2d 288, 294-295 (1970):

We think that there are a great many criminal offenses the conviction of which has no bearing whatsoever upon the witness' propensity for lying or truthtelling, and that such convictions ought not to be admitted for purposes of impeachment....

This is true not only of minor offenses like parking tickets...but also of some major offenses like murder or assault and battery. It is hard to see any rational connection between, say, a crime of violence and the likelihood that the witness will tell the truth....

For these reasons, we think it unwise to admit evidence of any and all convictions on the issue of credibility. We hold that admission of such evidence should be limited to those convictions that are relevant to the issue of truth and veracity. A perjury conviction, for example, would carry considerable probative value in a determination of whether a witness is likely to falsify under oath. We also think that other crimes that fall into the class of crimes involving dishonesty or false statement would have some value in a rational determination of credibility.

Subsection (a): The first sentence of this subsection reflects the wisdom of Asato v. Furtado, supra. The phrase "dishonesty or false statement," which appears in Asato and in Fed. R. Evid. 609(a), becomes simply "dishonesty" in the present rule. The intent is that crimes "involving dishonesty" be construed to include crimes involving false statement. The negative phraseology (the evidence "is inadmissible except when the crime is one involving dishonesty") is employed to make it clear that Rule 403's discretionary balance governs the question of admissibility under this rule. For purposes of this balance, the relevance of a prior conviction involving dishonesty will depend primarily upon the nature of the crime and the age of the conviction.

The second sentence of Rule 609(a) tracks the language of the previous statute, and implements the due process mandate of State v. Santiago, 53 H. 254, 492 P.2d 657 (1971).

Subsections (b), (c), (d): Subsection (b) of this rule, relating to the effect of a pardon upon the admissibility of a prior conviction, is similar to Fed. R. Evid. 609(c). Subsection (c), relating to the admissibility of juvenile adjudications, treats them as admissible "to the same extent as are criminal convictions under subsection (a)." This section, like the first sentence of subsection (a), is subject to the court's discretion under Rule 403 supra, to exclude relevant evidence when probative value is substantially outweighed by prejudicial impact or other negative factors. Subsection (d), regarding the pendency of an appeal from the previous conviction, is identical with Fed. R. Evid. 609(e).

 

Case Notes

 

Where defense counsel failed to object to the prosecution's premature elicitation of testimony regarding defendant's prior conviction during its redirect examination of officer before defendant had "introduced testimony for the purpose of establishing defendant's credibility as a witness" as required by subsection (a), ineffective assistance of counsel. 96 H. 83, 26 P.3d 572 (2001).

Where prosecution failed to establish that defendant's prior theft conviction involved conduct relevant to or probative of defendant's veracity as a witness, defendant's prior conviction could not be deemed a "crime of dishonesty" and was therefore inadmissible to impeach defendant's credibility as a witness; trial court thus erred in ruling that defendant's prior theft conviction was admissible under subsection (a). 96 H. 83, 26 P.3d 572 (2001).

Trial court did not abuse its discretion in denying motion to recall state witness who subsequently pleaded guilty to charge in unrelated case for impeachment purposes where evidence against defendant was overwhelming. 8 H. App. 624, 817 P.2d 130.

Trial court properly denied admission of person's prior convictions where court considered when person was convicted, for what crime, and for the facts underlying the conviction, and concluded convictions would be more prejudicial than probative. 82 H. 419 (App.), 922 P.2d 1032 (1996).

 

 

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