The opinion of the court was delivered by: KATZ
The prosecution seeks to impeach Joseph D'Agata, Sr. with his sixteen year old perjury conviction if D'Agata chooses to testify in this case charging him with conspiracy as well as possession, receipt and transportation of stolen goods. Fed. R. Evid. 609(b) precludes the admission into evidence of a conviction when more than ten years has elapsed since the date of conviction or of release from confinement for conviction, whichever is later, unless the court decides that, in the interests of justice, the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and the proponent provides notice of intent to use such conviction. The government has provided notice of its intent to use such conviction, as required by the rule, and now moves in limine to be permitted to introduce such evidence under Rule 609(b).
Three District Judges in this Circuit have applied Rule 609(b) to convictions over 10 years old. In U.S. v. Forte, No. CR 85-141, slip op. (E.D. Pa. July 15, 1985), Judge VanArtsdalen held that the defendant's twelve year old firearms violation would probably not be admissible to impeach his testimony in a proceeding on drug charges. Id., slip op. at 26. In U.S. v. Chavez, No. CR 83-344, slip op. (E.D. Pa. June 14, 1985), Judge Ditter refused to allow the defendant to use the government witness' twelve year old conviction for uttering bad checks for impeachment purposes. In U.S. v. Serot, 648 F. Supp. 494 (E.D. Pa. 1985), Judge Newcomer ruled that the evidence of Serot's prior conviction for submitting false statements to the Federal Housing Administration could be introduced to impeach Serot's credibility. Serot's conviction was ten years and seven months old.
Judge Newcomer applied the criteria regarding admissibility of prior convictions from Government of Virgin Islands v. Bedford, 671 F.2d 758, 761 n.4 (3rd Cir. 1982). The four factors in Bedford are:
(1) the kind of crime involved
(2) when the conviction occurred
(3) the importance of the witness's testimony to the case
(4) the importance of the credibility of the defendant.
Although Bedford construed 609(a)(1) and not 609(b), both require that the court balance probative value and prejudicial effect.
Another list of factors for applying Rule 609(a) was provided in U.S. v. Mahone, 537 F.2d 922 (7th Cir. 1976), cert. denied, 429 U.S. 1025, 50 L. Ed. 2d 627, 97 S. Ct. 646 (1976). That Court noted that District Courts should consider: the impeachment value of the prior crime (the greater the impeachment value, the higher the probative value); the point in time of the conviction and the witness' subsequent history (the greater the time between prior conviction and present trial, the higher the prejudicial value; subsequent criminal history, if any, will increase probative value); the similarity between the past crime and the charged crime (the greater the similarity, the higher the prejudicial value because of impermissible inferences of guilt); the importance of the defendant's testimony (the greater the importance of defendant's testimony, the higher the probative value and prejudicial effect); and the centrality of the credibility issue (the greater the credibility issue, the higher the probative value and prejudicial effect). Id. at 929.
Applying Rule 609(b) in U.S. v. Murray, 751 F.2d 1528 (9th Cir.), cert. denied, 474 U.S. 979, 106 S. Ct. 381, 88 L. Ed. 2d 335 (1985), the Court upheld a decision under 609(b) to admit evidence of an old conviction for receiving stolen property against the defendant because there was a significant conflict in testimony between the defendant and the government's key witness, and because the crime for which the defendant had been convicted suggested a lack of veracity. Id. at 1533. In U.S. v. Gilbert, 668 F.2d 94 (2d Cir. 1981), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 469, 102 S. Ct. 2014 (1982), the Court upheld the trial court's decision to admit Gilbert's mail fraud conviction although more than 10 years had elapsed since Gilbert's release from jail. The trial court found that:
Should Gilbert choose to testify, his credibility would be a crucial issue, that the impeachment value of a fraud conviction was high, that the two crimes [mail fraud and conspiracy to manipulate securities trading] were not so similar as to invite proper inferences and that the age of the prior conviction and the ...