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UNITED STATES v. JACKSON

November 20, 1975

UNITED STATES of America, Plaintiff,
v.
Andrew JACKSON, Defendant



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

 WEINSTEIN, District Judge.

 Defendant, accused of robbing a bank at gunpoint, has made pretrial motions for advance rulings (1) that a recent state felony conviction for assault cannot be used to impeach him in the event that he takes the stand and (2) the evidence that he used a false name on being arrested in Georgia shortly after the robbery is inadmissible because its probative value is outweighed by the risk of unfair prejudice. The motions are granted on conditions designed to prevent the defendant from gaining any unfair advantage from exclusion.

 I. PRIOR CONVICTION

 Impeaching witnesses by prior convictions is governed by Rule 609 of the Federal Rules of Evidence. Under Rule 609(a), Jackson's felony conviction for a crime not involving dishonesty or false statement is admissible only if the court determines that its probative value with respect to defendant's credibility outweighs prejudice to him. The Rule provides:

 
"Rule 609.
 
Impeachment by Evidence of Conviction of Crime
 
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."

 Legislative History of Rule 609

 The Rule, in its present form, constitutes a carefully considered legislative compromise growing out of a series of rigorous debates in committees and on the floor of both Houses of Congress. The legislative history affords important guidelines for the exercise of judicial discretion as contemplated by paragraph (1) of the Rule. For similar indications of changes in direction prior to the Congressional debates compare the various drafts of the Advisory Committee on Rules of Evidence. 46 F.R.D. 295 (1969); 51 F.R.D. 391 (1971); 56 F.R.D. 269 (1973).

 Rule 609(a), as promulgated by the Supreme Court and transmitted to Congress, followed the traditional practice of permitting free use of felony convictions to impeach the credibility of any witness, including a criminal defendant. The Supreme Court's rule provided:

 
"Rule 609.
 
Impeachment by Evidence of Conviction of Crime
 
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment."

 In hearings before the House Subcommittee considering the proposed Rules of Evidence, this formulation met stiff opposition from members and witnesses who believed that the use of prior convictions tends to deter defendants from testifying and to create unfair prejudice when they do. Hearings Before the Special Subcommittee on Reform of Federal Criminal Laws of the Committee on the Judiciary, House of Representatives, 93d Cong., 1st Sess., on Proposed Rules of Evidence, Serial No. 2, pp. 29-30, 68-69, 105-114, 251-252 (1973). The Subcommittee amended the Rule to accord a defendant some measure of protection in the trial court's discretion. Its proposal read as follows:

 
"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime (1) was punishable by death or imprisonment in excess of one year, unless the court determines that the danger of unfair prejudice outweighs the probative value of the evidence of the conviction, or (2) involved dishonesty or false statement."

 Report of Committee on the Judiciary House of Representatives, 93rd Cong., 1st Sess., No. 93-650, p. 11 (1973).

 The House Judiciary Committee was not, however, satisfied that the Subcommittee's amendment adequately protected an accused who wished to testify. Consequently, it amended Rule 609(a) to read:

 
"(a) General rule. -- For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the ...

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