Notwithstanding this provision, evidence of a prior infringement that would otherwise be permitted under Rule 404 may continue to be provided for the purposes sanctioned by that Rule. Furthermore, it is the Committee`s intention that, notwithstanding this rule, any false statement by an accused concerning the existence or nature of previous convictions may be answered by rebuttal evidence, including the record of such previous convictions. Similarly, these records may be presented to refute statements by the accused about his attitude or willingness to commit a general category of crimes, although denials or other statements by the accused regarding the specific conduct that forms the basis of the charge against him do not render previous convictions admissible to refute such a statement. (1) In the case of an offence punishable by the sentencing offence, the death penalty or imprisonment for more than one year, the evidence is as follows: The less decided cases deal with the question of whether rule 609(a) provides protection against unreasonably unfavourable previous convictions used to prosecute government witnesses. Some courts have interpreted rule 609(a) as not granting government protection to its witnesses. See, e.g., United States v. Thorne, 547 F.2d 56 (8th Cir. 1976); United States v. Nevitt, 563 F.2d 406 (9th Cir. 1977), cert. denied, 444 U.S. 847 (1979).
This approach is also rejected by the amendment. There are cases where the removal of government witnesses with criminal records that has little or nothing to do with credibility can unfairly undermine the government`s interest in a fair trial and unnecessarily embarrass a witness. Fed.R.Evid. Section 412. already recognizes this and excludes some evidence of past sexual conduct in the context of criminal sexual assault prosecutions. (4) The admission of evidence is necessary to fairly establish guilt or innocence. (a) In general. The following rules apply to the character of a witness by evidence of a criminal conviction: Paragraph (c). A pardon or equivalent granted solely for the purpose of restoring civil rights lost as a result of a conviction has no bearing on the personality test. However, if the pardon or any other procedure depends on proof of rehabilitation, the situation is different.
The result according to the rule is that the conviction becomes inadmissible. The option of admitting both conviction and rehabilitation as evidence was not chosen for political reasons, time constraints and difficulties of evaluation. The wording of Rule 609 was amended as part of the redesign of the Rules of Evidence to make them easier to understand and to make the style and terminology consistent across the Rules. These changes are only stylistically planned. There is no intention to change the outcome of a decision on the admissibility of evidence. Prior to the amendment, the rule appeared to give the defendant the advantage of the special balancing test when defence witnesses other than the defendant were called to testify. In practice, however, the fear of injustice to the accused is more acute when the accused`s own beliefs are presented in evidence. Almost all cases decided involve this type of indictment, and the amendment does not deprive the accused of meaningful protection, as Section 403 now clearly protects against an unjust indictment of a defence witness other than the accused. There are cases where an accused may be biased when a defence witness is charged. Such cases may occur, for example, if the witness has a special relationship with the accused, so that the defendant is likely to experience some ripple effect of the indictment of the witness. Rule 609(c), as presented by the Court, provided, inter alia, that evidence of a witness`s previous conviction was not admissible to challenge his or her credibility if the conviction was pardoned, quashed or other equivalent procedure based on evidence of rehabilitation and the witness had not been convicted of a subsequent offence.
The Committee amended the rule to provide that „recidivism” „shall have been punishable by death or imprisonment for more than one year” on the grounds that a subsequent conviction for a minor crime is not sufficient to refute the conclusion that the witness has been pardoned. The Committee also intends that the words „on the basis of a decision to pardon the sentenced person” apply not only to „certificate of rehabilitation or other equivalent procedure” but also to „pardon” and „annulment”. With regard to the criterion of discretion set out in article 609(a)(1), the Conference noted that the prejudicial effect to be weighed against the probative value of the conviction is precisely the prejudicial effect on the accused.