Ohio Evid.R. 609

History

Effective Date: July 1, 1980 Amended: July 1, 1991; July 1, 2003; July 1, 2023 Staff Note (July 1, 1991 Amendment) Rule 609 Impeachment by Evidence of Conviction of Crime The amendment makes several changes. One change concerns the trial court’s discretion to exclude evidence of prior convictions, and the other change concerns permissible methods of proving prior convictions. Rule 609(A) Discretion to exclude The amended rule clarifies the issue of the trial court’s discretion in excluding prior convictions. As adopted in 1980, the Ohio rule differed from its federal counterpart. A clause in Federal Rule 609(a)(1) explicitly authorized the trial court to exclude “felony” convictions; these convictions were admissible only if the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.” This clause was deleted from the Ohio rule. It could have been argued that this deletion meant that Ohio courts did not have the authority to exclude prior felony convictions. In other words, any felony conviction was automatically admissible. Indeed, the rule specified that these convictions “shall be admitted.” The Ohio Staff Note (1980), however, suggested otherwise. The Staff Note reads: In limiting that discretionary grant, Rule 609(A) is directed to greater uniformity in application subject only to the provisions of Rule 403. The removal of the reference to the defendant insures that the application of the rule is not limited to criminal prosecutions. The Supreme Court addressed the issue in State v. Wright (1990), 48 Ohio St.3d 5, 548 N.E.2d 923. The Court wrote: “Evid.R. 609 must be considered in conjunction with Evid.R. 403. The trial judge therefore has broad discretion in determining the extent to which testimony will be admitted under Evid.R. 609.” The amended rule makes clear that Ohio trial judges have discretion to exclude prior convictions. It also specifies how this discretion is to be exercised. Evid.R. 609(A) is divided into three divisions. Division (1) concerns “felony” convictions of witnesses other than the accused (prosecution and defense witnesses in criminal cases and all witnesses in civil cases). The admissibility of these convictions is subject to Evid.R. 403. Division (A)(2) concerns “felony” convictions of an accused in a criminal case. The risk that a jury would misuse evidence of a prior conviction as evidence of propensity or general character, a use which is prohibited by Evid.R. 404, is far greater when a criminal accused is impeached. See C. McCormick, Evidence 99 (3d ed. 1984) (“The sharpest and most prejudicial impact of the practice of impeachment by conviction …. is upon …. the accused in a criminal case who elects to take the stand.”) Accordingly, admissibility of prior convictions is more readily achieved for witnesses other than the accused. Evid.R. 403 requires that the probative value of the evidence be “substantially” outweighed by unfair prejudice before exclusion is warranted. In other words, Evid.R. 403 is biased in favor of admissibility. This is not the case when the accused is impeached by a prior conviction under Evid.R. 609(A)(2); the unfair prejudice need only outweigh probative value, rather than “substantially” outwei gh probative value. In making this determination the court would consider a number of factors: “(1) the nature of the crime, (1) recency of the prior conviction, (3) similarity between the crime for which there was prior conviction and the crime charged, (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.” C. McCormick, Evidence 94 n. 9 (3d ed. 1984). Division (A)(3) concerns dishonesty and false statement convictions. Because of the high probative value of these convictions in assessing credibility, they are not subject to exclusion because of unfair prejudice. This rule applies to the accused as well as other witnesses. The issue raised by Ohio Evid.R. 609 also is raised by the Federal Rule, even though the federal provision explicitly recognized trial judge discretion to exclude evidence of prior convictions. Because the discretionary language in the federal rule referred to balancing the prejudicial effect to the “defendant,” the applicability of this clause to civil cases and prosecution witnesses had been questioned. The U.S. Supreme Court in Green v. Bock Laundry (1989), 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed. 2d 557, ruled that the discretion to exclude convictions under Federal Rule 609(a) did not apply to civil cases or to prosecution witnesses. Moreover, the court ruled that Rule 403 did not apply in this context. An amendment to the federal rule was adopted to change this result. Rule 609(F) Methods of proof The rule as adopted in 1980 specified that convictions admissible under the rule could be “elicited from him [the witness] or established by public record during cross-examination …” The use of the term “cross-examination” was unfortunate. Custom permit s counsel to bring out evidence of prior convictions on direct examination “for the purpose of lessening the import of these convictions upon the jury.” State v. Peoples (1971), 28 Ohio Ap.2d 162, 168, 275 N.E.2d 626. Moreover, impeachment of a witness by proof of a prior conviction during direct examination is permitted under Evid.R. 607, which allows a party to impeach its own witnesses. The traditional methods of proof are through examination of the witness or by public record. These methods are permissible under division (F). Staff Note (July 1, 2003 Amendment) Rule 609 Impeachment by Evidence of Conviction of Crime Rule 609(B) Time limit The amendment added references to “community control sanctions” and “post-release control” in division (B) to reflect the availability of those forms of sanction along with the traditional devices of probation and parole already referred to in the rule. Under the rule as amended, the termination of community control sanctions and post-release control become additional events from which to date the staleness of a conviction under the rule’s presumptive exclusion of convictions that are remote in time.