A state Supreme Court committee is recommending adoption of a rule that would make it harder to use evidence of past convictions to impeach a criminal defendant’s credibility.
Revised N.J. Rule of Evidence 609 would bar introduction of evidence of convictions more than 10 years old unless the court determines that its probative value outweighs its prejudicial effect. The 10-year period would run from date of conviction or of release from confinement, whichever is later.
The rule currently provides that evidence of any witness’ conviction of a crime is admissible "unless excluded by the judge as remote or for other causes."
The proposal, by the Committee on the Rules of Evidence, is subject to public comment on or before May 1.
It stems from the Supreme Court’s 4-3 decision, in State v. Harris, 209 N.J. 431 (2012), that a trial judge did not abuse his discretion when he said prosecutors could use 13-year-old drug convictions to impeach the credibility of a defendant charged with robbery and burglary. Derrick Harris chose not to testify and was convicted.
The majority said Harris’ record of disorderly persons convictions between the 1994 drug convictions and the 2007 robbery and burglary trial served to "bridge the gap" of remoteness in time. But the dissenters said the ruling would have a chilling effect on defendants testifying in their own defense.
The court asked the committee to study whether the state rule should be amended to more closely resemble Federal Rule of Evidence 609, which says 10-year-old convictions are admissible for impeachment purposes only if the proponent of the evidence proves that its probative value "substantially" outweighs its prejudicial effect.
A subcommittee assigned to undertake the study, chaired by Andrew Rossner, associate dean for professional education at Rutgers Law School-Newark, concluded that N.J.R.E. 609 should be amended to adopt the federal rule’s practice of a presumption to admit convictions less than 10 years old and a presumption against admitting convictions more than 10 years old, but with a few differences so as to preserve New Jersey’s current principles.
The subcommittee noted that in actual practice, when New Jersey judges conduct the remoteness analysis under N.J.R.E. 609, they impose a higher burden upon the admissibility of such convictions, regardless of their age.
The proposed amendments state that in determining whether the evidence of a conviction is admissible, a court may consider:
• whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses;
• whether the conviction involved a crime of dishonesty, lack of veracity or fraud;
• how remote the conviction is in time; and
• the seriousness of the offense.
The subcommittee conceded the use of intervening disorderly persons offenses to "bridge the gap" between convictions that occurred more than 10 years before a current trial was "problematic," but the burden will shift to the state to show that the use of the gap evidence outweighs any prejudicial effect.
The federal rule generally requires that evidence of prior convictions less than 10 years old be admitted in the case of nondefendant witnesses. But "the Subcommittee saw no reason to depart from the current practice of applying the same rule to both witnesses and testifying defendants," the report said.
The subcommittee also decided to not follow the federal rule concerning admission of a crime involving "a dishonest act or false statement," which it felt would take away from the judge’s responsibility and discretion in assessing the probative value and prejudicial effect of such convictions.
Rather than incorporate a distinction between crimes of dishonesty and other crimes into the rule itself, the subcommittee recommended retaining the current practice of leaving it to the judge to give due weight to the nature of the crime for which a conviction is sought to be admitted.