Understanding ER 609: Impeachment by Evidence of Conviction of Crime

Introduction

ER 609, or Evidence Rule 609, is a critical legal guideline in both criminal and civil cases. It determines when evidence of a witness’s prior conviction can be admitted to attack their credibility. This rule balances the probative value of such evidence against its potential prejudicial impact. Understanding ER 609 is essential for legal practitioners to ensure fair trial procedures while assessing witness reliability.

General Rule

Under ER 609(a), evidence of a witness’s prior conviction can be introduced if it meets specific criteria:

Serious Crimes

The crime must be punishable by death or imprisonment for more than one year.
The court must determine that the probative value of this evidence outweighs the prejudice to the party against whom it is offered.

Crimes Involving Dishonesty or False Statement

Any crime involving dishonesty or a false statement can be admitted regardless of the punishment associated with the crime.

Time Limit

According to ER 609(b), there is a time limit on using conviction evidence:

10-Year Limit

Evidence of a conviction is not admissible if more than 10 years have passed since the date of the conviction or the release of the witness from confinement, whichever is later.

Exception

The court can admit evidence of an older conviction if it determines that the probative value substantially outweighs its prejudicial effect.
The party intending to use such evidence must provide sufficient advance written notice to the adverse party to allow for a fair opportunity to contest its use.

Effect of Pardon, Annulment, or Certificate of Rehabilitation

ER 609(c) outlines exceptions where conviction evidence is not admissible:

Rehabilitation

If the conviction has been pardoned, annulled, or subjected to a certificate of rehabilitation, and the person has not been convicted of a subsequent serious crime.

Innocence

If the conviction has been pardoned or annulled based on a finding of innocence.

Juvenile Adjudications

ER 609(d) generally excludes evidence of juvenile adjudications, with an exception for criminal cases where:

The witness is not the accused.
The juvenile offense would be admissible if it were an adult conviction.
The court believes that admitting the evidence is necessary for a fair determination of guilt or innocence.

Pendency of Appeal

Under ER 609(e), the fact that a conviction is under appeal does not make the evidence inadmissible. Additionally, evidence that an appeal is pending is also admissible.

Conclusion

ER 609 provides a framework for the admissibility of prior conviction evidence aimed at impeaching a witness’s credibility. It strikes a balance between presenting relevant evidence and protecting parties from undue prejudice. Legal professionals must carefully consider the specifics of ER 609 to effectively navigate the complexities of witness impeachment and ensure fair trial outcomes.

You can read the text of ER 609 here: https://www.courts.wa.gov/court_rules/pdf/ER/GA_ER_06_09_00.pdf

Review our client resources here

About Blanford Law:

We are no-nonsense, relentless, fair, and honest. We are great listeners instead of fast talkers, that is just who we are. More than 20 years ago, Ken began practicing law with a deeply-seeded belief that every person has the right to the best legal representation available. He built his law firm on that belief. Another belief that he strongly adheres to is his fundamental belief that clients deserve respect, with no assumptions or preconceived notions. If you or someone you know is accused of a crime or injured as a result of the negligence of another, please have them call us at 253-720-9304 or email us info@blanfordlaw.com