Monday, July 18, 2016

KRE 609 Impeachment by evidence of conviction of crime

 KRE 609 Impeachment by evidence of conviction of crime
(a) General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect. 
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
1. Mandatory. Not discretionary. ". . . .evidence that the witness has been convicted of a crime shall be admitted . . . . "
2. Felony convictions only (punishable by death or imprisonment for one (1) year or more).
3. Guilty pleas and pretrial diversions not yet completed count as convictions.
In Thomas v. Commonwealth, 95 S.W.3d 828, 830 (Ky. 2003) the Kentucky Supreme Court stated,“Once the trial court accepted his guilty plea to the underlying felony, the appellant was a convicted felon until such time as he completed the diversion program.,” (quoted in Praither v. Commonwealth, 301 S.W.3d 20 (Kentucky Supreme Court, 2009))

Thomas also stated, “Upon pleading guilty, the defendant’s “status as a ‘convicted felon’ was established”

Commonwealth v. Derringer, 386 SW 3d 123 – (Kentucky Supreme Court, 2012)
"[A] defendant is considered convicted of the offense, for certain purposes, once he enters the guilty plea”
4. If the witness admits to the felony conviction, the nature of the crime may not be inquired into upon cross-examination, although the witness may elect to disclose it voluntarily.

5. The conviction may be established by public record and the identity of the crime disclosed if the witness denies the conviction. I suppose the public record of the conviction or guilty plea could be admissible, if properly redacted to hide the identity of the crime, even though the witness admitted it.

6. Generally limited to convictions less than ten years old.


Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation

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This is not legal advice and I am not a lawyer.

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