Impeaching Witnesses in Federal and Texas Criminal Cases

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

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment;

(2) probation has been satisfactorily completed for the conviction, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; or

(3) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

(e) Pendency of an Appeal. A conviction for which an appeal is pending is not admissible under this rule.

(f) Notice. Evidence of a witness's conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence.

Texas allows impeachment with a criminal conviction that is either a felony or a crime of moral turpitude and the probative value outweighs its prejudicial effect. Unlike the federal rule, Texas does not differentiate between the type of witness the conviction is offered against. And every conviction must satisfy the same “reverse 403”1 balancing test before the conviction is admissible. There is likely very little difference in the type of “serious crimes” that could be admissible under Texas or federal law – the former refers to felonies and the latter refers to crimes punishable by more than one year incarceration. There is significant, if not perfect, overlap between these two categories. Texas, however, has a different idea of crimes other than serious crimes/felonies that are admissible. Texas refers to the much broader idea of crimes of “moral turpitude” rather than crimes of dishonesty or false statement. “Generally, moral turpitude means something that is inherently immoral or dishonest.” Hutson v. State, 843 S.W. 2d 106, 107 (Tex. App. Texarkana 1992, no pet.); see also Hardeman v. State, 868 S.W. 2d 404, 405 (Tex. App. Austin 1993), pet. dism’d, 891 S.W. 2d 960 (Tex. Crim. App. 1995) (“the quality of a crime involving grave infringement of the moral sentiment of the

1 The balancing test is not technically a mirror image of Rule 403 because probative value does not have to substantially outweigh prejudicial effect.