Impeaching Witnesses in Federal and Texas Criminal Cases

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

• Selling or handling whiskey. Smith v. State, 346 S.W. 2d 611, 611 (Tex. Crim. App. 1961); see Rivera v. State, 255 S.W. 2d 219, 219 (Tex. Crim. App. 1953)(violations of the liquor law).

• Gambling. Neill v. State, 258 S.W. 2d 328, 331 (Tex. Crim. App. 1953).

• Reckless conduct and misdemeanor assaultive offenses not involving violence against women. Patterson v. State, 783 S.W. 2d 268, 271 (Tex. App. Houston [14th Dist.] 1989, pet. ref'd).

• Criminal trespass. Hutson v. State, 843 S.W. 2d 106, 107 (Tex. App. Texarkana 1992, no pet.).

• Criminal mischief. Gonzalez v. State, 648 S.W. 2d 740, 742 (Tex. App. Beaumont 1983, no pet.)(even where conduct involved taking money from coin operated video machines).

• Contempt for failure to pay support. Jessup v. State, 853 S.W. 2d 141, 144 (Tex. App. Fort Worth 1993, pet. ref'd).

In contrast, the advisory committee notes to Federal Rule of Evidence 609 provide the following examples of crimes of dishonesty or false statement: “the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully. . . .

[E]vidence that a witness was convicted of making a false claim to a federal agent is admissible under this subdivision regardless of whether the crime was charged under a section that expressly references deceit (e.g., 18 U.S.C. §1001, Material Misrepresentation to the Federal Government) or a section that does not (e.g., 18 U.S.C. §1503, Obstruction of Justice).” The committee also provided examples that do not apply: “some decisions that take an unduly broad view of ‘dishonesty,’ admitting convictions such as for bank robbery or bank larceny.”

The remote crime exception is essentially the same under the federal and Texas rules. Where the date of conviction or release from confinement (whichever is later) is more than 10 years before the date the witness to be impeached is testifying, the conviction is inadmissible, unless the probative value of the conviction substantially outweighs the prejudicial effect, a true reverse 403 analysis. The federal rule requires notice of intent to use a remote conviction while the Texas rule already requires notice of intent to use any conviction under Rule 609.

The pardon exception is also essentially the same. If the conviction is the result of a pardon, certificate of rehabilitation or similar procedure, the conviction is not admissible unless the witness has had an intervening conviction that would have been admissible under the other provisions of the applicable Rule 609. Under both federal and Texas rules, a conviction that has been the subject of a pardon based on actual innocence is never admissible, even if there is a subsequent conviction.

Texas also includes that successfully completing probation renders the conviction inadmissible, a provision that is absent from the federal rule. There is no distinction between a probation period that has expired and one that is satisfactorily completed. “Therefore, when the probationary term has expired and the witness has not been subsequently convicted of a felony or crime involving moral turpitude, the prior conviction is not admissible for impeachment purposes.”

Ex parte Menchaca, 854 S.W. 2d 128, 131 (Tex. Crim. App. 1993) (emphasis in original).

The provisions of the juvenile conviction exception are slightly different. In practice, however, juvenile convictions are rarely admissible. The most significant determinant of whether a juvenile