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RULES OF EVIDENCE

ARTICLE VI. WITNESSES

Rule 609. Impeachment by Evidence of A Criminal Conviction

 

(a) In General. The following rules apply to attaching a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness’s admitting - a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than 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 a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if any appeal is pending. Evidence of the pendency of the appeal is also admissible.

2016 NHRE Update Committee Note

The 2016 amendment made substantive and stylistic changes to the rule. The language of the New Hampshire Rule mirrors Federal Rule of Evidence 609, except that the New Hampshire rule includes the phrase “of the appeal” in the second sentence of subdivision (e).

The phrase “for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year,” used in 609(a)(1), means for a crime that was punishable by death or by imprisonment for more than one year under the law under which the witness was convicted.

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 609 (Notes of Advisory Committee on 1990 and 2006 amendments).


 

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