Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) In general. Evidence of a criminal conviction offered to impeach a witness's character for truthfulness must be admitted if its probative value outweighs its prejudicial effect on a criminal defendant or on any party in a civil action if the criminal conviction is:

(1) For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year; or

(2) For any crime if the court can reasonably determine that establishing the elements of the crime required proving—or the witness admitting—a dishonest act or false statement.

(b) Time limit. Evidence of a conviction is admissible under this rule only if:

(1) Less than 15 years has passed since the conviction; or

(2) Less than 10 years has passed since the witness was released from confinement for the conviction.

(c) Effect of a pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure.

(d) Juvenile adjudications. Evidence of a juvenile adjudication in a public proceeding is admissible under this rule. Evidence of a juvenile adjudication in a proceeding that was closed to the public is admissible only in juvenile proceedings that are also closed to the public.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 609 is differs in a number of respects from its federal counterpart. Maine Rule 609 requires all convictions to pass a "reverse Rule 403" test, i.e. they can be admitted only if their probative value as to credibility outweighs any danger of unfair prejudice to a criminal defendant or any civil party. There are minor differences in time limits and the Maine time bar is absolute. The proposed restyled Rule maintains the substantive differences as they are now.

Federal Restyling Committee Note The language of Rule 609 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisers' Note to former M.R. Evid. 609 (February 2, 1976) Subdivision (a), in making conviction of a crime admissible if punishable by imprisonment for one year or more, is essentially the same as 16 M.R.S.A. § 56, as amended by P.L. 1973, c. 295, which speaks in terms of "conviction of a felony". Under Maine law any crime that may be punished by imprisonment for one year or more is a felony. "May be punished" means "punishable"; the punishment that may be imposed, not that which is imposed, determines whether or not the offense is a felony. Smith v. State, 145 Me. 313, 326, 75 A.2d 538, 545 (1950). The sentence actually imposed governs whether imprisonment shall be in the State Prison. 15 M.R.S.A. § 1703. Since the rule permits the use of convictions in other states, where the distinction between felonies and misdemeanors may no longer prevail, it is preferable to speak in terms of the duration of possible punishment. Cf. proposed Maine Criminal Code, 107th Legislature, L.D. 314. If the crime involved dishonesty or false statement, the evidence is admissible regardless of the punishment. This approximates the provision of 16 M.R.S.A. § 56 which allows evidence of a conviction for "any larceny or any other crime involving moral turpitude". It has the advantage of avoiding the latter troublesome phrase. See State v. Jenness, 143 Me. 380, 62 A.2d 867 (1948); State v. Peaslee, 287 A.2d 588 (Me. 1972). The subdivision includes a discretionary factor, taken from the Federal Rule, under which the court will exclude the evidence unless it determines that its probative value outweighs its prejudicial effect. Subdivision (1b) preserves the time limitations of the statute which exclude evidence of convictions deemed to be too old to warrant admission. Subdivision (c) renders inadmissible convictions which have been the subject of a pardon, annulment or certificate of rehabilitation. The latter two are included although unknown to Maine practice because convictions in other states come within the rule. Subdivision (d), making juvenile adjudications inadmissible, is in accord with 15 M.R.S.A. § 2606. The rule in subdivision (a) follows the Federal Rule closely. The Federal Rule has the trivial difference of using the phrase "in excess of one year" rather than "one year or more". It also limits the discretionary factor to crimes set forth in clause (1) rather than applying to the entire subdivision. It further includes in subdivision (b) an additional discretionary factor which may in the interests of justice permit the showing of a conviction older than the normal time limits allow (ten years in the Federal Rule). There is also a provision in subdivision (a) of the Federal Rule that evidence of a conviction "shall be admitted if elicited from him or established by public record during cross-examination". This appears to produce a result Congress could not have intended. It is plain that, as under present law, a witness can be asked if he is the so-and-so who on a stated date was convicted of the crime of such-and-such. If the answer is yes, there is no problem. If it is no, the state is put to its proof. It must not only have a certified copy of the conviction but a person who can identify the witness as the person convicted. This cannot be done "during cross-examination", as the rule seems to require, except perhaps by suspending the cross-examination and putting on the identifying witness. This might be deemed to be "during cross-examination". Nothing but harm and confusion could come from including this clause. Subdivision (c) of the Federal Rule makes a conviction the subject of a pardon and the like inadmissible only if based on a finding of either rehabilitation or innocence. This is inappropriate, for Maine at least, because ordinarily the reason for a pardon is not a matter of record. Subdivision (d) of the Federal Rule departs from this rule by allowing in a criminal case evidence of a juvenile adjudication of a witness other than the accused if it would be admissible to attack the credibility of an adult and the court makes the finding that its admission is necessary for a fair determination, thus attempting to balance the harm to the juvenile against the gain in the fair administration of justice. The Federal Rule has a subdivision (e), which allows a conviction to be shown despite the pendency of an appeal. 1978 Amendment Note (April 6, 1978) This amendment replaced the word "and" in Rule 609(b) of the Maine Rules of Evidence as originally promulgated with the word "or". In its order adopting the amendment, the Supreme Judicial Court stated: The Court had dispensed with the requirements for notice and opportunity to comment on the ground that the public interest so requires because unless it is amended the rule reaches an unintended and unreasonable result.

Advisory Committee Note (January 31, 1985 Amendment) Subsection (d) makes evidence of a juvenile adjudication generally admissible under Rule 609 only if the adjudication results from a proceeding open to the public. See 15 M.R.S.A. § 3307(2)(A). Otherwise, such adjudications are admissible under this rule only in other nonpublic juvenile cases.

Advisers' Note (April 16, 1990 Amendment) The foregoing amendment [adding the references to witness credibility and to the criminal defendant or any civil party] is for the purpose of further stressing that the only legitimate basis for admission of a prior criminal conviction under this rule is the inference that a person convicted of crime or of specific kinds of crimes might not be truthful in testimony. The rule does not support or permit the admission of prior convictions to sustain an inference of substantive guilt, innocence or liability with respect to any issue in the case. The amendment also makes it clear that before admitting a criminal conviction of any witness under this provision, the court must balance the probative value of the conviction on the credibility of the witness against any unfair prejudice to a criminal defendant or any civil party. The state in a criminal case is not entitled to the protection of the balancing test contained in Rule 609. However if the danger of unfair prejudice, confusion of the issues, misleading the jury or waste of time substantially outweighs the probative value of a proffered conviction, it can be excluded under Rule 403 on motion of any party, including the prosecution. The rule is applied most often to protect a criminal defendant who testifies in his own behalf. It also is designed to screen out unfair prejudice in civil cases. In each case the proffered conviction must qualify as to type under paragraph a) and recency under paragraph b). The trial judge must then weigh the probative value of the particular conviction offered on the credibility as a witness of the person convicted against the unfair prejudice from other inferences that may be drawn from the conviction or any emotional reaction evoked by it. One instance in which the Court should give particular consideration to the risk of unfair prejudice is where a criminal defendant would be impeached with a prior conviction so similar to the offense charged that the jury might draw the improper inference that the defendant merely repeated prior criminal conduct. Prior convictions for sex offenses tend to evoke strong emotional reactions. Such convictions could be excluded under this rule. Convictions of offenses which have little probative force on testimonial credibility would be subject to exclusion on a lesser showing of unfair prejudice than convictions of offenses highly relevant to a witness' truthfulness on the stand. Frequently the determination of the admissibility of convictions under this rule is crucial to the defendant's election to testify in his own behalf. In many cases this election will affect the entire trial strategy of the defense. The trial court should generally entertain a motion in limine to determine the admissibility of any prior convictions of the defendant before the trial or, at the latest, before the opening statements. See, State v. Pottios, 564 A.2d 64, fn. 1 (Me. 1989). If examining counsel has any question about the admissibility of a prior conviction under this rule, opposing counsel should be given an opportunity to object before the question is posed in front of the jury.

Advisory Committee Note (June 1, 1992 Amendment) The purpose of adding the word "specific" in Rule 609(a) is to make it clear that evidence that is admissible under this rule is evidence of a specific crime, not a generic "serious" crime, "felony," "misdemeanor" or other substitute. This requires the trial court to balance the potential of unfair prejudice from evidence of the specific crime of which the witness was convicted against the probative value of evidence of conviction of that crime on issues of credibility. To permit evidence of a generic "serious crime," "felony" or other substitute would permit the jury to speculate about the crime of which the witness was convicted and perhaps draw inferences, which could be unfair to the witness.