Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law

If the conviction is for a . . .

1. Crime punishable in the convicting jurisdiction by death or imprisonment for more than 1 year, and

2. The witness IS the accused criminal defendant,

3. It must be admitted, if the probative value outweighs the prejudicial effect to that defendant.

The second rule is for impeaching a witness other than the criminal defendant with a conviction of a serious crime:

If the conviction is for a . . .

1. Crime punishable in the convicting jurisdiction by death or imprisonment for more than 1 year, and

2. The witness is not the accused criminal defendant,

3. It must be admitted, subject to Rule 403’s balancing test in any case.

The third rule is for impeaching any witness with a conviction for a crime of dishonesty or false statement:

If the conviction is for a . . .

1. Crime where the elements or the witness’s admission proved a dishonest act or false statement,

2. For any witness,

3. It must be admitted (and 403 does not apply).

The rule also provides three types of exceptions: remote convictions, pardons, and juvenile convictions. After determining that the particular conviction is preliminarily admissible, go on to analyze whether:

1. The remote conviction exception applies, where the conviction or release from confinement (whichever is later) was more than 10 years ago, or

2. The pardon or equivalent exception applies, where the conviction was the subject of a pardon, annulment, certificate of rehabilitation, or equivalent procedure, or

3. The juvenile exception applies, where the conviction was as a juvenile. Texas Rule of Evidence 609 provides:

(a) In General. Evidence of a criminal conviction offered to attack a witness's character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.