Thursday, January 10, 2013

Evidence: Proof of Convictions

One method for impeaching a witness at trial is to ask the witness about a crime that the witness was convicted of in the past. And, provided the crime is a felony, that crime need not involve dishonesty to be admitted into evidence. There is a need, however, to balance the probative value of admitting the evidence against the prejudicial effect. In addition, certain facts, such as the amount of time that has elapsed since the conviction, must be considered. If the conviction occurred more than 10 years prior, it'll generally be inadmissible.

Misdemeanors, on the other hand, are treated slightly differently. Though a witness can be impeached by asking that witness about misdemeanor convictions, that will only be allowed if the misdemeanor is one involving dishonesty. Stated otherwise, a misdemeanor not involving dishonesty is inadmissible for the purposes of impeachment.

All of the above is essential information for the MBE, but a question often overlooked is whether attempting to admit proof of the conviction (if, for example, the witness denies the conviction on cross-examination), is inadmissible hearsay. A copy of the judgement is an out-of-court statement, and it's being offered for the truth of the matter asserted, so hearsay is a consideration. There is, however, an exception to the rule against hearsay allowing for the admissibility of certain types of proof in this regard.

Specifically, a certified copy of a judgement of a prior felony conviction (a guilty plea will suffice) is admissible to prove any fact essential to the judgement. Note that in a criminal case, if offered for any reason other than impeachment, the evidence will be admissible only against the accused. In contrast, a certified copy of a misdemeanor conviction will be excluded from evidence for all purposes, as it is hearsay without exception.

**Need additional help learning Evidence? My resource MBE Essentials: Evidence contains the essential information tested in Evidence on the MBE.

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