705.5Impeachment: Prior Conviction [Rule 609]

The Basic Rule

Rule 609 – Impeachment by Evidence of Conviction of a Crime

G.S. 8C-609.

Scope and Purpose of Rule

The credibility of any witness (including the defendant or the victim) may be impeached with evidence that the witness has been convicted of a felony or a Class A1, Class 1, or Class 2 misdemeanor. G.S. 8C-609(a). Impeachment is also allowed for certain “unclassified” offenses (such as DWI) if the statutorily prescribed punishment qualifies the offense as a Class 2 misdemeanor or higher. See G.S. 15A-1340.23(a); G.S. 14-3(a); State v. Gregory, 154 N.C. App. 718 (2002); State v. Armstrong, 203 N.C. App. 399 (2010).

Unlike the comparable federal rule, where the admissibility of the conviction depends in part on whether the offense involved “a dishonest act or false statement” or was “punishable by death or imprisonment for more than one year,” North Carolina’s Rule 609 applies to any conviction that satisfies the offense class requirements. Compare G.S. 8C-609(a) with Fed. R. Evid. 609(a)(1), (2); see also G.S. 8C-609(a), Official Commentary (“The current practice in North Carolina is that any sort of criminal offense may be the subject of inquiry for the purpose of attacking credibility.”).

However, impeachment of a witness is the only proper purpose for which the evidence may be admitted under this rule – it may not be offered or used for any other substantive purpose, such as showing a person’s “character” or establishing guilt. See State v. Carter, 326 N.C. 243 (1990); State v. Tucker, 317 N.C. 532 (1986); State v. McEachin, 142 N.C. App. 60 (2001); see also N.C.P.I.—Crim. 105.35 (“If, considering the nature of the crime(s), you believe that this bears on the witness’s truthfulness, then you may consider it, together with all other facts and circumstances bearing upon the witness' truthfulness, in deciding whether you will believe or disbelieve the witness’s testimony at this trial. You may not consider this evidence for any other purpose.”). Offering or using evidence that was admitted pursuant to Rule 609 for any other substantive purpose may be reversible error. See, e.g., State v. Tucker, 317 N.C. 532 (1986) (reversible error where prosecutor “used defendant's prior convictions primarily to characterize him as a woman abuser, a person of violence who understands nothing but force, and one who has no respect for authority or the property of others,” and argued that “defendant did it this time because he had done it before”).

Evidence of a conviction is only relevant and admissible under Rule 609 for the purpose of attacking the credibility of a “witness.” Thus, evidence is usually only admissible under this rule when the person convicted of that crime has testified. See State v. Badgett, 361 N.C. 234 (2007). However, another rule, Rule 806, allows a party to attack the credibility of a declarant whose statement has been admitted as a hearsay exception in the same manner and to the same extent as the party could impeach him or her “if declarant had testified as a witness.” G.S. 8C-806. Therefore, prior convictions of a declarant who does not testify at trial may be admissible if the declarant’s statements have been admitted into evidence. See State v. Canady, 355 N.C. 242 (2002); State v. McConico, 153 N.C. App. 723 (2002).

For more information, see the related Evidence entry on Declarant’s Credibility [Rule 806].

Time Limit

The admissibility of a prior conviction for impeachment purposes under Rule 609 depends largely upon the age of the prior conviction.

Less Than 10 Years Old

If fewer than 10 years have passed since the date of the conviction or the date when the person was released from confinement for that conviction (whichever is later), the evidence “shall be admitted.” G.S. 8C-609(a), (b). If a qualifying conviction falls within this time period, its admission under Rule 609 is mandatory and the judge must allow it. See State v. Brown, 357 N.C. 382 (2003); State v. Lynch, 217 N.C. App. 455 (2011); State v. McConico, 153 N.C. App. 723 (2002).         

More Than 10 Years Old

If more than 10 years have passed since the date of the conviction or the date when the person was released from confinement for that conviction (whichever is later), there is a rebuttable presumption that the prior conviction is not admissible. G.S. 8C-609(b). To overcome this presumption, the proponent of the evidence must give advance written notice to the other party of his or her intent to use the evidence sufficiently far in advance that the other party has a fair opportunity to contest its use. Id. The judge must also determine that the probative value of the conviction substantially outweighs its prejudicial effect. Id. See State v. Ross, 329 N.C. 108 (1991); State v. Shelly, 176 N.C. App. 575 (2006); State v. Harris, 140 N.C. App. 208 (2000). This is commonly referred to as a “reverse 403” test.

To determine whether the evidence is admissible, the judge must weigh factors such as:

1. the extent to which the prior conviction is relevant to the issue of credibility (e.g., a fraud conviction is typically more probative than a drug conviction);
2. the remoteness of the conviction (e.g., a conviction from 11 years ago is typically more probative than one from 30 years ago); and
3. the relative importance of impeaching this witness’s credibility and whether the party has any other means of doing so.

See State v. Holston, 134 N.C. App. 599 (1999). Compare State v. Shelly, 176 N.C. App. 575 (2006) (proper to admit evidence of 13 year-old convictions for robbery, larceny, and fraud, while excluding conviction for drug possession) with State v. Harris, 149 N.C. App. 398 (2002) (error to allow evidence of a 15 year-old conviction for assault, which was not probative of veracity and was only used to characterize defendant as an abusive and violent person).

Before admitting evidence of the conviction, the judge “must make findings as to the specific facts and circumstances which demonstrate the probative value outweighs the prejudicial effect.” State v. Hensley, 77 N.C. App. 192 (1985). See State v. Joyner, 243 N.C. App. 644 (2015) (findings should address whether crime involved dishonesty, demonstrated a pattern of behavior, and similarity to current offense); State v. Farris, 93 N.C. App. 757 (1989) (court must make actual findings - it is not sufficient to merely state the conclusion that the probative value outweighs the risk of prejudice).

The judge’s ruling will only be reversed for an abuse of discretion. See, e.g., State v. Muhammad, 186 N.C. App. 355 (2007) (no abuse of discretion where trial court allowed evidence of a 13 year-old assault conviction from New Jersey, even though it did not involve dishonesty, because the court found that under the facts of this particular case the probative value substantially outweighed the risk of prejudice).

Methods of Proof

Prior convictions may be proved in two ways under this rule. First, evidence of the conviction may be “elicited from the witness” simply by asking. G.S. 8C-609(a). Second, the conviction may be “established by public record during cross-examination or thereafter.” G.S. 8C-609(a); see State v. Dalton, 96 N.C. App. 65 (1989) (after defendant denied prior convictions on cross-examination, state properly proved them by introducing a public record of the convictions).

How Much Detail is Allowed?

Assuming a conviction is eligible for impeachment use under Rule 609, the scope of inquiry about the conviction is usually limited to:

1. the name of the crime;
2. the time and place of conviction; and
3. the punishment imposed.

See State v. Lynch, 334 N.C. 402 (1993); State v. Bell, 338 N.C. 363 (1994); State v. Gallagher, 101 N.C. App. 208 (1990). Therefore, it is usually improper to ask the witness for more specific details about the crime, such as whether the charges were reduced pursuant to a plea, or whether a weapon was used in the crime. See State v. Riley, 202 N.C. App. 299 (2010); State v. Wilson, 98 N.C. App. 86 (1990).

However, there are two exceptions to this rule that may allow more detailed information to be introduced.

Opening the Door

First, if the witness “opens the door” by minimizing or mischaracterizing the convictions, the state may be allowed to inquire into more specific details to correct the inaccuracies or omissions or to “dispel favorable inferences arising therefrom.” State v. Braxton, 352 N.C. 158 (2000). See, e.g., State v. Bishop, 346 N.C. 365 (1997); State v. Blair, 181 N.C. App. 236 (2007); State v. Mewborn, 178 N.C. App. 281 (2006).

Facts as Elements

Second, if the facts of the prior conviction are inherently descriptive of the elements of the underlying crime, the court may allow questions about those facts. See, e.g., State v. King, 343 N.C. 29 (1996) (finding no prejudicial error where prosecutor asked witness about receiving a 90-day sentence for “kicking [victim] in the mouth and cutting him so that he had to get 13 stitches,” because the question went to the factual elements of the crime of conviction: assault inflicting serious injury).

Admissibility of Certain Types of Convictions

The admissibility of a prior conviction under Rule 609 generally may be determined simply by looking at the offense class (felony or Class A1, 1, or 2 misdemeanor) and the age (more or less than 10 years old) of the witness’s conviction. See G.S. 8C-609(a), (b). The admissibility of several other common types of convictions that are not clearly covered or excluded by the rule are discussed below.

Allowed Under Rule 609

1. PJC
   As long as the defendant freely, knowingly and voluntarily pled guilty, the fact that he or she received a prayer for judgment continued (or “PJC”) in lieu of a sentence does not bar the use of the conviction for impeachment under Rule 609. See State v. Sidberry, 337 N.C. 779 (1994) (“trial court did not err in ruling that the State could cross-examine defendant regarding these prior guilty pleas if defendant chose to testify,” despite the fact that defendant had received PJCs on those offenses); State v. Bradley, 175 N.C. App. 234 (2005) (“formal entry of judgment is not required in order to have a conviction”); quoting State v. Hatcher, 136 N.C.App. 524 (2000); State v. Hasty, 133 N.C. App. 563 (1999); (applying the rule in sentencing context, and noting that a “conviction includes the entry of a plea of guilty”); State v. Watkins, 283 N.C. 17 (1973) (“It is settled law in this State that a plea of guilty, freely, understandingly, and voluntarily entered, is equivalent to a conviction of the offense charged.”). Cf. State v. Lynch, 337 N.C. 415 (1994) (affirming trial court's refusal to allow impeachment with a prior conviction where the record only showed that the PJC had been entered, but testifying witness had pled not guilty and the court record did not clearly indicate a finding of guilt).
2.  Pending Appeal
   The fact that a conviction is currently on appeal (including appeals for trial de novo from district to superior court) does not bar the use of the conviction under Rule 609. See G.S. 8C-609(e); State v. Weaver, 160 N.C. App. 61 (2003). However, the pendency of the appeal is likewise admissible. G.S. 8C-609(e).
3. Other Jurisdictions
   The conviction may be from North Carolina or another jurisdiction, as long as the conviction otherwise fits within the scope the rule. See State v. Brown, 357 N.C. 382 (2003) (Virginia conviction for “malicious wounding,” which resulted in a 6 year prison sentence, properly admitted under Rule 609).
4. No Contest Plea
   A conviction based on a plea of “no contest” rather than a plea or finding of “guilty” is still admissible under Rule 609. See State v. Outlaw, 326 N.C. 467 (1990).

Not Allowed Under Rule 609

1. Reversed on Appeal or Pardoned
   A conviction that has been reversed on appeal or for which the defendant has been pardoned is not admissible under Rule 609. See G.S. 8C- 609(c); State v. Jordan, 162 N.C. App. 308 (2004).
2. Charged But Not Convicted
   Rule 609 allows evidence of “convictions,” not evidence of “crimes.” If the witness was not convicted of the offense, then it is not admissible under this rule. See G.S. 8C-609(a); State v. Jones, 329 N.C. 254 (1991). However, in some circumstances (particularly if the defendant is the person testifying) the evidence may be admissible under another rule for an alternate purpose. For more information, see the related Evidence entry on Other Crimes, Wrongs, or Acts [Rule 404(b)].
3. Juvenile Adjudications
   Evidence of juvenile adjudications are “generally not admissible” under Rule 609. They may, however, be permitted in some criminal cases in the court’s discretion. See G.S. 8C-609(d). The judge may allow the evidence if the adjudication: (i) is for a witness other than the defendant; (ii) it would have been a qualifying criminal conviction if committed by an adult (i.e., it was a felony or Class A1, 1, or 2 misdemeanor offense); and (iii) it is “necessary for a fair determination of the issue of guilt or innocence” in the case. See State v. Deese, 136 N.C. App. 413 (2000); State v. McAllister, 132 N.C. App. 300 (1999); see also State v. Whiteside, 325 N.C. 389 (1989) (no abuse of discretion where trial court allowed court orders regarding a witness’s juvenile adjudications “to be used on cross-examination for impeachment purposes but denied defendant's request to introduce them into evidence at the close of defendant's evidence”).
   Notwithstanding Rule 609, statutes applicable in juvenile delinquency proceedings permit the use of prior juvenile adjudication for impeachment purposes. See, e.g., G.S. 7B-3201(b) (“in any delinquency case if the juvenile is the defendant and chooses to testify or if the juvenile is not the defendant and is called as a witness, the juvenile may be ordered to testify with respect to whether the juvenile was adjudicated delinquent”); In re S.S.T., 165 N.C. App. 533 (2004) (state was properly permitted to impeach testifying juvenile with evidence of prior juvenile adjudication); see also G.S. 7B-2408 (“If the juvenile denies the allegations of the petition, the court shall proceed in accordance with the rules of evidence applicable to criminal cases.”).