RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General rule. For the purpose of attacking the
for truthfulness of
i1) evidence that a witness other than an accused has been
convicted of a crime must be
admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in
excess of one year under the law under which the witness was convicted, and evidence that
an accused has been convicted of such a crime must be admitted if the court determines that
the probative value of admitting that evidence outweighs its prejudicial effect to the accused;
ii2) evidence that any witness has been convicted of a crime
must be admitted if it
involved dishonesty or false statement, regardless of the punishment, if the
elements of the
crime required proof or admission of an act of dishonesty or false statement by the witness.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of conviction or of the release of the witness from any confinement imposed for that conviction, whichever is the later date unless the witness is still in confinement for that conviction.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction
is not admissible under this rule if (1) the conviction is vacated or has been the subject of a
pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a
finding of the rehabilitation of the person convicted, and that person has not been convicted
of a subsequent crime
which that was punishable by death or
imprisonment in excess of one
year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. However, the court, in a criminal case, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Rule 609 was amended, effective March 1, 1990, January 1, 1995, March 1, 2008.
Rule 609 is taken from the Uniform Rules of Evidence (1974) and has been modified only for the purpose of clarification. In subdivision (b), the phrase "unless the witness is still in confinement for that conviction" was added to make it clear that where there is no release the expiration of the ten-year period will not bring a confined witness under this section. Subdivision (c) was modified by adding the words "is vacated" in paragraph (1). This was done to assure that cases involving deferred imposition of sentences would be covered.
This rule varies from Federal Rule 609 in that the Federal rule gives a court discretion, in subdivision (b), to extend the ten-year period during which evidence of a conviction may be admitted. Under this rule, the court has no discretion in the matter.
The general rule stated in Rule 609 varies from North Dakota law as the rule
evidence of a conviction only if the crime is punishable by more than one year in prison or
involves dishonesty or false statement. Under North Dakota case law, evidence of any
criminal conviction, regardless of punishment, was admissible. State v. Moe, 151 N.W.2d
310 (N.D. 1967). A further distinction is found in the ten-year time limit for admissibility
set by the Rule. North Dakota cases have established no express time limit. State v.
Pfaffengut, 77 N.W.2d 521 (N.D. 1956).
This rule also varies from both Federal and Uniform Rule 609 by the omission of
subdivision (e) which states:
"The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible."
This is considered to be surplus language and not needed in our rule. The substance
subdivision (e) has actually been the law in North Dakota for many years. See State ex rel.
Olson v. Langer, 65 N.D. 68, 256 N.W. 377 (N.D. 1934).
Rule 609 was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Subdivision (a) was amended, effective January 1, 1995, to track the 1990 federal amendment.
Subdivision (a) was amended, effective March 1, 2008. The amendment states the circumstances under which evidence of a conviction of a crime involving dishonesty or false statement may be admitted.
Sources: Joint Procedure Committee Minutes
: of September
28-29, 2006, pages 16-18;
September 23-24, 1993, page 21; November 7-8, 1991, pages 4-5; October 25-26, 1990,
page 16; March 24-25, 1988, page 12; December 3, 1987, page 15; April 26-27, 1979, page
9; April 8, 1976, pages 28-29; October 1, 1975, page 5. Rule
Fed.R.Ev. 609 , Federal Rules
of Evidence; Rule 609, SBAND proposal; Rule 609, Uniform Rules of Evidence