Alaska R. Evid. 609 commentary

(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 ensures 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 accompa-

nying 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.