Federal Evidence Review

Twelve year old prior conviction was inadmissible simply because probation period fell within ten years under FRE 609(b); circuit notes open issue on whether a revocation of probation or parole on the underlying conviction may stop the ten-year clock, in United States v. Rogers, __ F.3d __ (7th Cir. Sept. 4, 2008) (No. 06-3730)

The impeachment by prior conviction rule draws a line at ten years. FRE 609(b) provides that impeachment with conviction evidence is presumptively inadmissible “if a period of more than ten years has elapsed since the date of [a] the conviction or of [b] the release of the witness from the confinement imposed for that conviction, whichever is the later date.”

To overcome the inadmissibility presumption, a conviction more than ten years old may be admitted if “the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” A different standard applies to convictions less than ten years old. FRE 609(a)(1) permits a prior conviction to be used for impeachment when the probative value outweighs the prejudicial effect of the conviction. FRE 609(a)(2) provides for the automatic admission of impeachment convictions involving “dishonesty or false statement.”

In measuring under the ten year rule, the Seventh Circuit recently considered an open issue: “whether probation following a prison term constitutes ‘confinement’ for purposes of the ten-year time limit under Rule 609(b) -- in other words, whether the ten-year clock begins to run upon the witness’s release from prison or the expiration of his ensuing probation or parole.” Rogers, __ F.3d at __. In the case, defendant Rogers was charged with making a false statement on a firearm-purchase form and with being a felon in possession of a firearm. During his trial in 2005, he testified. The government sought to impeach the defendant with his prior conviction twelve years earlier for distributing cocaine. The defendant was released from prison on the 1993 drug conviction in 1994 after his sentenced was modified to a probation term. His probation term ended in 1999, about six years before his trial. The trial court admitted the prior drug conviction for impeachment by applying the more lenient standard under FRE 609(a) to admit a conviction less than ten years old.

The Seventh Circuit concluded that the trial court erred in admitting the prior drug conviction which was more than ten years old. However, on the facts of the case, the error was harmless based on other overwhelming evidence of guilt. The circuit held: “Rule 609(b) unambiguously starts the clock at the date of conviction or release from confinement,’ without any mention of periods of probation or parole.” Rogers, __ F.3d at __. The government did not contend that the prior conviction could be admitted under the more stringent standard of FRE 609(b).

Few circuits have confronted this issue. The Rogers court cited one case from the Fifth Circuit. See United States v. Daniel, 957 F.2d 162, 167-68 (5th Cir. 1992) (“confinement” for purposes of calculating the ten-year time limit in Rule 609(b) does not include parole supervision).

In concluding, the circuit clarified how the ten years is measured under FRE 609(b) and identified yet another open issue for another day:

“In this circuit we have now defined both the starting and ending points for the calculation of Rule 609(b)’s ten year time limit. The clock starts at the witness’s release from any physical confinement, or in the absence of confinement, the date of the conviction. See United States v. Rein, 848 F.2d 777, 782 (7th Cir. 1988) (start date is not the date of the criminal act but the date of conviction). In United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986), we held that the end date of the time limit for impeaching convictions is the start of the trial at which the witness is testifying. Other circuits have confronted the additional question of whether a revocation of parole stops the running of the ten-year clock. See, e.g., United States v. Gray, 852 F.2d 136, 139 (4th Cir. 1988) (stopping the time where the defendant had been reincarcerated after a parole violation); United States v. McClintock, 748 F.2d 1278, 1288-89 (9th Cir. 1984) (same for probation violations that implicate the original offense conduct). But that is a matter for another case. Here, we agree with the second of the district court’s post trial rulings that it was error to admit Rogers’s prior conviction under the more lenient standard of Rule 609(a). More than ten years elapsed since his release from prison in 1994, triggering the more stringent admissibility standard of subsection (b).” Rogers, __ F.3d at __.