IMPEACHING THE DEFENDANT WITH A PRIOR CRIMINAL CONVICTION
From MN Bench Book - Trial Procedures & Practices for Judges
The credibility of a witness, including the defendant, can be impeached, if he or she testifies, through the introduction of a prior felony conviction or a conviction for a non-felony criminal offense if the offense involved dishonesty or false statement. This rule and the ability to impeach a witness with a prior conviction evolved from the way in which persons convicted of felonies were treated in England in the 15th and 16th centuries. Originally the penalty for all felonies was hanging. Consequently impeaching a witness/defendant with a prior felony conviction was never an issue as the person was dead. The harshness and broad application of the death penalty to all felonies was recognized and the death penalty was restricted to very serious felonies.However, a person convicted of a felony permanently lost their civil rights, including the right to testify. Under this state of the law the issue of a person, with a prior felony or credibility related conviction, testifying in a subsequent trial never arose as they were legally barred from doing so. This permanent loss of civil rights was seen as draconian and states began to restore the civil rights to persons convicted of felonies after a period of time of being law abiding. However, reflecting the previous bar on a person convicted of a felony testifying, the rule of evidence 609 was adopted that a person, previously convicted of a felony, whose civil rights had been restored could testify as a witness but their credibility could be impeached with their prior felony conviction even if the felony conviction was not related to truthfulness or credibility. The rule expanded the types of convictions that could be used to impeach a witness to include non-felony convictions that were related to dishonesty of false statement.
A. NOTICE REQUIREMENT
1. When the state intends to impeach the credibility of a defendant with a prior criminal conviction, notice must be given to the defendant of that intent and the defendant must be given an opportunity to challenge the use of the prior conviction for impeachment.
2. Notice must be given prior to jury selection in jury trials. Giving notice to the defendant before jury selection allows the defendant to decide whether or not to testify based on the judge's decision to allow or not allow the prior conviction to be used to impeach the defendant if he or she testifies. The defendant can then raise the issue of testifying or not testifying in jury selection.
B. PROOF OF PRIOR CONVICTION Rule 609 does not indicate how the prior conviction is to be proven. The state must be able to prove the prior conviction prior to being allowed to ask the defendant if he or she has been convicted of a prior crime. In most cases this proof consists of a certified copy of a a court record indicating the conviction. Testimony from a person with knowledge of the defendant's prior conviction may be sufficient. Proof of the prior conviction is required so that there is no doubt that the defendant was convicted of the crime the state wants to impeach the defendant with. Rule of Evidence 608(b) Specifically allows the admission of extrinsic evidence (Certified copy a conviction of the defendant consistent with the requirements of rule 609 or other types of competent and reliable evidence) of the prior conviction of the defendant to impeach the defendant. This is an explicit exception to the language in 608 which prohibits the admission of extrinsic evidence impeach a witness.
C. PRIOR CONVICTION ONLY ADMISSIBLE IF DEFENDANT TESTIFIES Prior convictions of the defendant are offered to impeach the defendant and only admissible if the defendant testifies.
D. LIMIT ON FACTS OF PRIOR CRIME
- 1. When a court allows a prior conviction of a defendant to be used to impeach the defendant if the defendant testifies, the state should only be allowed to elicit the offense the defendant was convicted of and the date of the conviction. Prior conviction evidence is evidence of the conviction without going into the details of the underlying behavior that resulted in the conviction. 
- 2. In some cases the trial court may prevent the state from introducing the nature or description of the prior felony conviction if it determines that the prejudicial effect of disclosing the nature of a felony conviction outweighs its probative value. 
E. CAUTIONARY INSTRUCTION WHEN PRIOR CRIME EVIDENCE OFFERED The court, sua sponte, should give a cautionary instruction (See or click on CURATIVE AND CAUTIONARY INSTRUCTIONS after the conviction is introduced and again during the final instructions to the jury. However, it is recommended that the court obtain the defendant's consent that such cautionary instruction be given. 
F. CRIMES OF DISHONESTY & OTHER FELONY CONVICTIONS Rule of Evidence 609, which covers this procedure, divides past convictions into two groups:
- 1. CRIMES INVOLVING DISHONESTY OR FALSE STATEMENTS.
- a. A crime involving dishonesty or false statement, is always admissible. The court does not do a balancing test.
- b. Crimes involving dishonesty or false statement can be any level offense;
Misdemeanor,Gross Misdemeanor or Felony.
- c. Determining dishonesty requires an involved inquiry into the statutory elements of the crime and, if the elements do not include an element of dishonesty or false statement, an examination of the underlying facts of the conviction. In some cases dishonesty is an element, such a perjury or forgery. In other cases dishonesty may not be an element but the manner in which the crime was committed is indicative of dishonesty, for example some crimes of theft by swindle. ,
- i. While the trial court has broad discretion, the rule is that the dishonesty must be one of the elements of the crime or the manner in which the crime was committed, rather than a collateral effect; theft is not dishonest, but many theft by swindle convictions could be.
- ii. Fraud, perjury, filing false statements, theft by swindle/con, and any similar crime will most likely be a “crime involving dishonesty.”
- 2. CRIMES NOT INVOLVING DISHONESTY OR FALSE STATEMENT.
- a. Crimes not involving dishonesty or false statement must have been punishable by death or imprisonment in excess of one year.
- b. The proffering party must also show that the probative value outweighs the prejudicial value; the standard favors excluding these crimes.
- c. Factors to consider:
- i. The impeachment value of the prior crime.
- The supreme court has stated that “impeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.”
- ii. The date of the conviction and the defendant’s subsequent history.
- 1. The older the conviction, the less probative it is.
- 2. Generally, if ten years has elapsed, the conviction is not sufficiently probative.
- iii. The similarity of the past crime with the charged crime.
- 1. The greater the similarity, the greater the reason for not permitting use of the prior crime; it is too prejudicial.
- iv. The importance of the defendant’s testimony.
- 1. Often, the defendant will choose to not testify at all, rather than be exposed to impeachment.
- If the admission of a defendant’s prior conviction would cause him to refrain from testifying, the importance of having the jury hear the defendant’s version of the case might weigh in favor of excluding the prior conviction.
- v. The importance of the credibility issue.
- If a defendant’s credibility is central to the determination of the case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.
The trial judge should be careful to distinguish evidence of prior bad acts of the defendant (404b evidence) from prior convictions of the defendant offered to impeach the defendant (609). Prior bad acts 404b evidence, if allowed by the trial judge, is offered as part of the state’s case. It is not uncommon for the same case to be used both for the prior acts of the defendant and the conviction that resulted from those prior bad acts of the defendant. Prior bad acts evidence is evidence of behavior.
Note: to print this chart, right-click on the flow chart and select "view image" or "open image in new tab", expand the image to it's full size and print from your browser menu.
- Minn. R. Evid. § 609.02
- Blackstone, William, Sir. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia Vol. 5, 272-273 (1803); Robinson, Louis N., Penology in the United States 20 (1923).
- Wharton, Francis, Commentaries on Law: Embracing Chapters on the Nature, the Source, and the History of Law 136 (1884); Grigsby, James E., The Criminal Law: Including the Federal Penal Code 25 (1922).
- Judge Robert E. Bowen, The New Minnesota Rules of Evidence 11 (Minnesota Trial Lawyers Association Seminar, Apr. 20, 1979).
- Minn. Stat. Ann. 609.165 Subd.1; Aaron Nussbaum, First Offenders, A Second Chance 24 (1956).
- Minn. Stat. Ann. 595.07; Peter N. Thompson, The New Rules of Evidence, 34 Bench & Bar of Minn. No. 3 31, 34 (1977); Richard S. Frase, Criminal Evidence: Constitutional, Statutory, & Rules Limitations 191-2 (1992); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967) (articulating the balancing test to determine whether a prior felony conviction could be introduced in court to impeach a witness’ credibility); State v. Jones, 271 N.W.2d 534 (Minn. 1978) (adopting the five factor balancing test put forward in Gordon). For an analysis of how Minnesota courts have interpreted the Gordon Test so as to render it nearly purposeless, see Ted Sampsell-Jones, Minnesota’s Distortion of Rule 609, 31 Hamline L. Rev. 405 (2008).
- State v. Jones, 271 N.W.2d 534(Minn. 1978).
- State v. Hill, 801 N.W.2d 646 (Minn. 2011).
- State v. Bisssell, 368 N.W.2d 281 (Minn. 1985)
- McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002)
- State v. Head, 561 N.W.2d 182, (Minn. Ct. App. 1997)
- State v. Olkon, 299 N.W.2d 89 (Minn. 1980)
- State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979).
- State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
- State v. Ihnot, 575 N.W.2d 581 (Minn. 1998)