tank of the M/Tug Crusader, owned and managed by his employer Sonat Marine. While attempting to loosen and remove the cap which was allegedly rusted shut, plaintiff asserts he sustained personal injuries from which he now seeks relief.
Defendants, in an attempt to attack plaintiff's credibility at trial, sought to introduce evidence of his April 24, 1974 conviction for converting $ 400.00 in bus tickets for his own use while employed as a driver for Greyhound Buses. Plaintiff pleaded guilty to that charge, paid a fine of $ 200.00, made full restitution of the $ 400.00, was placed on probation for three years, and was released in May 1976.
Defendants filed a motion in limine to admit evidence of plaintiff's prior criminal conviction and the plaintiff responded by filing a cross motion to exclude introduction of such evidence at trial. In an order issued August 8, 1988, I denied both the defendants' motion to admit the evidence as well as the plaintiff's motion to exclude such evidence at trial. In reaching that decision, I determined that the ten year time period of Rule 609 should conclude at the time the plaintiff testifies at trial.
Because I could find no definitive legal authority which directly confronts this issue, and because determining when to conclude the ten year period has become even more emergent in this circuit since the court of appeals held that a district judge has no discretion under Rule 609(a) to exclude prior felony convictions less than ten years old when offered to impeach a civil litigant, Diggs v. Lyons, 741 F.2d 577 (3d Cir. 1984), cert. denied, 471 U.S. 1078, 85 L. Ed. 2d 513, 105 S. Ct. 2157 (1985), I now address this important issue and hold that the proper moment to conclude the ten year time period of Rule 609 is at the time a witness testifies at trial or the date when a public record of that witness' prior conviction is offered into evidence at trial.
The predicate inquiry in an analysis of the admissibility of plaintiff's prior criminal conviction for impeachment purposes is a determination of how much time has elapsed since his prior conviction. If plaintiff's conviction is less than ten years old, Rule 609(a) is the operative rule.
If, however, plaintiff's criminal conviction is more than ten years old, the case is governed by Federal Rule of Evidence 609(b).
Because the timeliness of plaintiff's prior conviction is critical, determining the precise boundaries of the ten year time period of Rule 609 is of paramount importance. Despite the significance of this issue and although much case law has explored the point at which the ten-year period is to begin, there appears to be little uniformity and no definitive case law which squarely addresses the appropriate time for a court to conclude the ten year time period.
The clarity with which Rule 609, its legislative history, and the case law detail the precise point at which the ten year period is to begin, stands in sharp contrast to the confusion over when a court is to determine the conclusion of the ten year period. While it is clear from the Rule itself that the commencement of the ten year period is measured from "the date of the conviction or of the release of the witness from confinement imposed for that conviction, whichever is the later date . . .," Fed. R. Evid. 609(b),
much "uncertainty has been expressed as to whether the applicable period should be measured up to the date when the trial commences, or the witness testifies, or the date of the charged crime." 3 J. Weinstein, Weinstein's Evidence para. 609, at 112 (1987).
Although it appears that no court has directly decided this issue, many courts, through dicta and other implicit language, have indicated that the ten year period should conclude either at the time the witness testifies or at the time the trial begins. The Fifth Circuit,
for example, in United States v. Cohen, 544 F.2d 781, 784 (5th Cir.), cert. denied, 431 U.S. 914, 97 S. Ct. 2175, 53 L. Ed. 2d 224 (1977), computed the ten year time period from the date the defendant was released from confinement to the commencement of the trial.
Two years later, when faced with the opportunity to retreat from that position, the Fifth Circuit expressly refused to do so:
We see no reason to depart from [the approach articulated in Cohen ] except to add a caveat that since the concern is the defendant's credibility when he testifies[,] the correct point from which to measure backwards in time may be the date when he testifies rather than the date when the trial commences, which in a protracted trial might be considerably earlier.
United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979) (emphasis added).
Most courts, when discussing the time period of a witness' prior conviction, use language which strongly implies that the time is to be measured either to the commencement of trial or to the time the witness, here the plaintiff, testifies at trial. See, e.g., United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986) (defendant's "last day in confinement . . . was on February 22, 1976. The trial in the present case began on September 30, 1985, within the ten-year limitation for the admission of evidence. . .") (emphasis added); United States v. Hans, 738 F.2d 88, 93 (3d Cir. 1984) (evidence admissible "only if either the conviction or the witness' release from prison occurred within 10 years of the trial.") (emphasis added); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075 (5th Cir. 1982) (prior acts occurred "more than ten years prior to trial and was hence outside the time limit" [of] 609(b)); United States v. Portillo, 633 F.2d 1313, 1323 n.6 (9th Cir. 1980) (conviction more than ten years old " at the time of trial.") (emphasis added), cert. denied, 450 U.S. 1043, 68 L. Ed. 2d 241, 101 S. Ct. 1763 (1981); United States v. Cobb, 588 F.2d 607, 613 n.5 (8th Cir. 1978) (time period measured "to the date of his trial"), cert. denied, 440 U.S. 947, 59 L. Ed. 2d 636, 99 S. Ct. 1426 (1979); Mills v. Estelle, 552 F.2d 119, 120 (5th Cir.) (rule 609 generally prohibits use of prior conviction if witness was released from confinement "more than ten years before the witness testifies in the current trial ") (emphasis added), cert. denied, 434 U.S. 871, 54 L. Ed. 2d 149, 98 S. Ct. 214 (1977).
The legislative history of Rule 609, while not expressly addressing this issue, clearly reveals Congress' intent that convictions greater than ten years old be admitted sparingly and with great caution:
It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.