Convicted in 1991 and releasedo in 2007. My conviction was for a drug conspiracy. The civil matter is for a traumatic rear end accident which was not my fault. Under Rule 609(a) the Insurance Co.will use my prior conviction for credibility and of course assasination of character convicted over 20 years,ago but my final release was in April of 2007. My prior conviction has no probative value and is more prejudicial in this case. As we all know, "you can remove a skunk from the jury box but you can't get rid of the smell. It will be a irrelevant distraction from the case and truth. Can the Judge allow this?
get a lawyer and make a motion in limine to exclude cross on the prior conviction on grounds (among others) that it doesn't go to credibility.
I hope you found this response to be helpful. If so, your clicking "helpful" and/or "best answer" helps my Avvo rating and would be appreciated. This answer is merely my personal view on the subject and is not intended to constitute legal advice nor does it create an attorney-client relationship. Further, my response is based upon the limited facts that were provided in the question and therefore my view might well be different if I was informed of additional or different facts or circumstances. Moreover, I am only licensed to practice law in the state of New York. You should not take any action or refrain from taking any action in reliance upon my view set forth herein, rather you should consult counsel who is licensed to practice in the state having jurisdiction over this matter.
In NYS any factors that may affect how a jury judges your credibility may be introduced.
If you have a civil attorney representing you in the case I am sure the attorney will assert the proper objections
One of the many reasons you ought to have an attorney in any court matter. The use of this conviction to impeach your credibility is something the other side may well try to do. The judge will hear arguments, if the proper motion is filed, regarding this issue outside the presence of the jury. Your side will argue the conviction was not for a crime involving dishonesty and therefore its use to impeach credibility is improper, it is stale (too old), and far more prejudicial than valuable. The judge will make his or her ruling. If he or she does allow the use of this conviction, you probably get a good issue for an appeal, but your case will suffer. If it is not allowed, you are in better shape. In the end, it is up to the judge to decide what gets in and what stays out and any alleged errors he or she makes on this point can be taken up on appeal.
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You are obviously well informed and know of the proper Rule. If you have an attorney representing you- make sure that he or she is aware of the facts. As you probably have read, many evidentiary issues are up to the judge, particualry in grey areas.
Greg Baumgartner has 2 law degrees (less than 1% of all attorneys)- Perfect 10 Avvo rating. This answer is intended to be general in nature and not specific as to any person or fact situation. No attorney-client relationship exists for those reading this answer and readers should contact an attorney of their choosing for legal advice on their specific situation.
While the rules of evidence allow the use of a prior felony conviction for impeachment, the judge can exclude it if he/she feels the evidence is unduly prejudicial when compared to the probation value of the evidence. This is known as a Rule 403 balancing test. Your civil lawyer will be familiar with it. A pre-trial motion in liming addresses this issue before the evidence is introduced.
Yes the judge can allow it. In fact 609(a) says the evidence "must" be admitted, making it a mandatory rather than discretionary rule. Still, you have your arguments under 609(a)(2) that evidence of the conviction has no probative value and merely prejudices you. Your attorney's Motion in Limine will get ruled-on before jury selection begins, so if your lawyer knows your conviction is coming in, he/she can at least question the panel on it.
If liability is not in dispute and you had some objective injuries (even if they were just bruises) that will probably help you keep it out of evidence. There's also the fact that your crime, while a felony, did not involve fraud or theft (i.e. crimes that involves lying); my impression is those have a higher likelihood of coming in.
Remember too the definition of relevant evidence under TRE 401: "Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." The issues the jury will be asked to decide in your case are whether the other driver was negligence in rear-ending another vehicle, and whether the accident was the proximate cause of the injuries you're claiming. There's a good argument that knowing you did time on a drug charge won't help answer either of those questions.
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:
(1) the crime was a felony or involved moral turpitude, regardless of punishment;
(2) the probative value of the evidence outweighs its prejudicial effect to a party; and
(3) it is elicited from the witness or established by public record.
(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 its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
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