Impeachment by Conviction of a Crime (The Nuances)

Most will go into the bar exam understanding that a witness can be impeached by conviction of a crime. And that the type of crime (felony or misdemeanor) determines whether the crime used to impeach has to be probative of truthfulness to be admissible. 

But the MBE tests nuances, sometimes nuances that never show up in the released practice questions. In this post I'll focus on some of those nuances involved in impeaching a witness by conviction of a crime. 

It's important to keep in mind how long it's been since the conviction. But there are specifics to keep in mind about what's sometimes referred to as the "10 year rule." If more than 10 years have passed since either the witness's conviction or from release from confinement (whichever is later), then it's less likely that evidence of that conviction will be admissible to impeach the witness. Evidence of that conviction for purposes of impeaching the witness will only be admissible if its probative value substantially outweighs its prejudicial effect. Importantly, the proponent must give the adverse party reasonable written notice of the intent to use this conviction to impeach so that the adverse party has a fair opportunity to contest its use. 

Evidence of a conviction for the purposes of impeachment is never admissible if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated. This only applies if the person has not been convicted of a later felony. In addition, conviction evidence for the purpose of impeachment is never proper if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. 

Juvenile adjudications are not treated the same as adult convictions. Evidence of a juvenile adjudication is admissible to impeach only in criminal cases. Further, they are admissible only to impeach witnesses other than the defendant and only if an adult's conviction for that offense would be admissible to attack an adult's credibility. Lastly, prior to admitting this evidence for impeachment, it must be determined that admitting the evidence is necessary for determining guilt or innocence. 

A final point: it's worth noting that if a conviction is admissible to impeach a witness, it's admissible even if an appeal of that conviction is pending. The pendency of the appeal is likewise admissible.