Alaska Comm. R. Evid. 609

As amended through July 24, 2024

Rule 609 - Impeachment by Evidence of Conviction of Crime

(a)General Rule. In every common law jurisdiction some prior criminal convictions may be used to impeach the credibility of a witness. This subdivision, identical to Alaska R. Crim. P. 26(f) (1) which it supersedes, allows prior convictions to be used for impeachment purposes only if the crime involved dishonesty or false statement. Favored by the House of Representatives, this limitation was rejected by the Senate. The Federal Rule reflects the Senate view; it permits all impeachment that this subdivision would permit plus impeachment on the basis of any other conviction, if the crime was punishable by death or imprisonment in excess of one year in the jurisdiction in which the witness was convicted and is more probative than prejudicial.

Limiting admissibility to convictions involving crimes such as perjury, fraud, forgery, false statement, and other crimes in the nature of crimen falsi sharpens the inquiry and insures that prior convictions are not used as evidence of the general character of the witness in contravention of Rule 404 and 405, but are used properly, i.e., to impeach credibility. See Uniform Rule 21 for a similar provision.

This rule does not govern the competency of witnesses or operate to disqualify anyone on the basis of prior convictions.

Federal courts have divided on the question whether larceny offenses qualify as crimes involving dishonesty or false statements. In Lowell v. State, 574 P.2d 1281 (Alaska 1978), the supreme court held that "larceny and embezzlement . . . disclose the kind of dishonesty and unreliability which bear upon the veracity of persons perpetrating those crimes." (Footnote omitted.) It must be remembered, however, that the trial judge must strike a balance between probative value and prejudicial effect. Hence, the fact that the trial judge may admit larceny convictions for impeachment purposes does not mean such convictions must be admitted.

One federal court noted that

[e]ven the courts that reject the view that stealing, without more, involves "dishonesty" that bears upon a witness's veracity recognize that modern theft statutes may encompass criminal conduct that does not fall within the gambit of Rule 609(a) (2) [federal equivalent of Alaska Rule 609(a) (2) ], for a theft conviction may well be based on fraudulent or deceitful conduct that would previously have been prosecuted as larceny by trick, embezzlement, or the taking of money by false pretenses, etc. Accordingly, these courts have adopted the rule that, when the statutory offense of which the witness was convicted does not require proof of fraud or deceit as an essential element of the crime, a prior conviction may be admitted under Rule 609(a) (2) [federal equivalent of Alaska Rule 609(a) ] if the proponent of the evidence bears the burden of showing that the conviction "rested on facts warranting the dishonesty or false statement description."

United States v. Papia, 560 F.2d 827 (7th Cir. 1977). Accord, United States v. Hayes, 553 F.2d 824 (2d Cir. 1977).

Presumably, a party who successfully bears the burden of showing that a crime, which on its face would not indicate dishonesty or false statement, involved the deceit envisioned by the rule will be able to qualify a prior conviction for impeachment use.

In Lowell v. State, supra, the supreme court rejected the argument that any use of prior convictions to impeach a criminal defendant is fundamentally unfair. But the court emphasized the limited nature of the impeachment evidence permitted by the predecessor Criminal Rule and the balancing test included in the rule in concluding that it was fair and that it did not impermissibly burden the defendant's right to testify. The new rule should receive the same approbation.

(b)Time Limit. The five year time limit set forth here is an attempt to balance competing concerns: concern, on the one hand, for both the privacy of witnesses and the acute danger of prejudice when a party-witness is impeached by a prior conviction, and, on the other hand, the need for the trier of fact to know whether a witness previously has demonstrated dishonesty in order to fairly assess the credibility of the witness. An assumption underlying the time limit is that older convictions are less probative than more recent ones in determining the likelihood that a witness will tell the truth. The rule specifically provides that convictions that are more than five years old are stale and generally are not very probative of the credibility of a witness. While any time limit is arbitrary, a five year limit was recognized by Alaska R. Crim. P. 26(f) (2) ), superseded by this rule.

We assume that the ten year limitation of the proposed Federal Rules of Evidence . . . . is not of constitutional import and that Alaska's five year limitation is constitutionally valid. In particular cases, of course, the trial courts may see fit to relax the prohibition where the accused's right of confrontation so requires.

Gonzales v. State, 521 P.2d 512, 515 n.5 (Alaska 1974).

The second sentence of this subdivision provides the trial judge with the necessary discretion to ignore the time limit in the interest of justice. There may be cases, for example, in which the accused's right of confrontation will override the five year limitation. Except in rare cases where limiting impeachment as to prior convictions threatens to deny a party a fair trial or to infringe upon a constitutionally protected right, the time limit should be respected.

(c)Admissibility. As noted earlier, evidence of prior convictions may be especially prejudicial when a party takes the stand and is impeached. Prejudice is also likely when a witness who is closely identified with a party is impeached by prior convictions. In these and other cases when there is a real danger of prejudice, the court shall weigh the danger against the probative value of the evidence, and if the danger is greater, shall rule the evidence inadmissible. To permit claims of prejudice to be raised before the jury learns of a conviction, the judge shall be advised of the existence of the conviction before it is used as impeachment evidence.

(d)Effect of Pardon, Annulment, or Certificate of Rehabilitation. At common law, the effect of a pardon, whether conditional or unconditional, generally is not to preclude the use of the conviction for the purpose of impeaching the credibility of the witness who was convicted and pardoned. See Annot., 30 A.L.R.2d 893 (1953). Although pardons may reinstate many of the civil disabilities accompanying a conviction, they do not presuppose rehabilitation or innocence. This subdivision renders evidence of a conviction that has been the subject of a pardon, annulment, certificate of rehabilitation, or an equivalent procedure inadmissible if accompanied by a showing of innocence or rehabilitation. Absent specific procedures entailing findings as to the innocence or rehabilitation of pardoned witnesses, pardons pursuant to the authority conferred upon the governor by Alaska Constitution, Article 3, Section 21 and AS 33.20.070 are not prima facie evidence of innocence or rehabilitation. The burden of demonstrating the rationale for a pardon or other procedure in a given case is on the party relying upon the pardon or other procedure to prevent impeachment.

(e)Juvenile Adjudications. Most jurisdictions are in accord that evidence of juvenile adjudications is generally inadmissible. See Annot., 63 A.L.R.3d 1112 (1975). The state has an interest in preserving the confidentiality of juvenile adjudications of delinquency. See Alaska Children's Rule 23 and AS 47.10.080. Some of the policy considerations are akin to those underlying the exclusion of adult convictions after the issuance of a certificate of rehabilitation.

This subdivision, based on Federal Rule 609, recognizes that in certain cases the strategic importance of a witness may be so great and the prior adjudication so probative on the issue of credibility that the interests of justice require admissibility of the adjudication.

The United States Supreme Court, in Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347 (1974), ruled that the state's interest in preserving the confidentiality of juvenile adjudications had to give way to the defendant's interest in introducing evidence of the prosecution's key witness' probationary status to show bias. The sixth amendment's confrontation clause requires that the defendant be given the chance to cross-examine witnesses in a meaningful way. Although evidence of bias is especially compelling, there may be other cases where the Constitution requires that a defendant be able to impeach the credibility of a key witness by introducing evidence of prior juvenile adjudications. The second sentence of this subdivision is written with those cases in mind. It also recognizes the possibility that there may be civil cases in which evidence of a prior juvenile adjudication may be required in order to prevent grave injustice.

(f)Pendency of Appeal. Where an appeal from a conviction offered to impeach a witness is pending, the trial judge faces a dilemma: if the conviction is not admitted the jury may believe a witness whose credibility would be suspect if the conviction were made known, and if the conviction is admitted but is reversed on appeal a new trial may be necessary. The more important a witness is to the case, the more difficult the dilemma. One escape is to postpone the trial of a case until the appeal of the prior conviction is determined. When this is not practicable, the court must focus on the probative value of the prior conviction, the likely prejudicial effect of the conviction, alternative impeachment devices that may be available, and perhaps even on the likelihood that the prior conviction will be reversed.

Smith v. Beavers, 554 P.2d 1167 (Alaska 1976), makes clear that the same limitations apply to a direct examiner impeaching his own witness as to a cross-examiner.

Alaska Comm. R. Evid. 609