Notwithstanding limitations on the use of the prior criminal record of a witness as substantive evidence,30 the credibility of any witness, including a party-witness, may be impeached on cross-examination by asking the witness whether the witness has ever been convicted of a crime which falls under certain categories. The questions on cross-examination are limited to eliciting from the witness testimony confirming that the witness was convicted of certain specific classes of crimes. If the witness admits the conviction or convictions, further questioning about the crimes will not be allowed, but the record of the conviction may be introduced into evidence. If the witness denies the conviction or convictions, the cross-examiner may confront the witness with the public record of the conviction or may introduce the record of conviction into evidence or both.31

The adoption of Delaware Rule of Evidence 609 has modified that practice by defining two categories of criminal convictions which may be inquired into for the purpose of impeachment.32 The first category is crimes which constitute a felony under the law under which the witness was convicted, if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect.33  In this category, felonies involving dishonesty or false statement are admissible as bearing directly on a witness’ credibility without the need for engaging in a balancing test. Felony convictions not involving dishonesty or false statement, however, are admissible only if the trial court, in the exercise of its discretion, concludes that the probative value of the evidence outweighs its prejudicial effect.33.1

The second category is any crimes (felony or misdemeanor) involving dishonesty or false statement, regardless of punishment.34 “Dishonesty” means crimes involving dishonest conduct, such as lying, deceiving, cheating, stealing, defrauding, as well as crimes involving false statements. The mere act of violating the law (for example, drug possession) does not, of itself, involve “dishonest” conduct to permit the conviction to be used for impeachment under the second prerequisite. Rather, the crime must include an element of dishonesty.35

Evidence of a prior crime may not be used for impeachment if more than ten years have elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.36 This rule evidences a legislative presumption that the passage of time depreciates or reduces the probative value of a prior conviction.36.1  Such evidence is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence so as to provide the adverse party with a fair opportunity to contest the use of such evidence.37

Evidence of a conviction is not admissible for impeachment purposes if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation or other equivalent procedure based on a finding of rehabilitation of the person convicted, and that person has not been subsequently convicted of a subsequent felony, or (2) the conviction has been the subject of a pardon, annulment or other equivalent procedure based on a finding of innocence.38

Evidence of a juvenile adjudication is generally not admissible for impeachment purposes. In a criminal case, however, a court may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that such evidence is necessary for a fair determination of the issue of guilt or innocence.39 While a juvenile criminal record may not be introduced into evidence, the acts upon which that record is based may be admitted provided that the requirements for the introduction of evidence of other crimes and bad acts are met.39.1

The pendency of any appeal from any conviction does not render such evidence inadmissible. Evidence of the pendency of any appeal is itself admissible.40

When using prior crimes for impeachment, the witness may be asked (i) whether the witness has been convicted of a felony or crime of dishonesty; (ii) if so, what those crimes were; and (iii) where and when those convictions were obtained.41  Although this formulation slightly expands the bounds of permissible questioning from that permitted before the adoption of the Delaware Rules of Evidence,41.1 the interrogator still is limited to those three questions, and may not explore the factual circumstances surrounding the prior criminal conduct.41.2

Rule 609 is limited to criminal convictions, and does not extend to situations where charges are merely pending. 41.3 Similarly charges that were dismissed are not convictions under this rule.41.4  However, a trial judge has discretion to allow a party to use specific instances of misconduct if probative of truthfulness or untruthfulness to attack a witness’ character for truthfulness or untruthfulness on cross-examination.41.5

30. See § 20:8.

31. See Wailer v. State, 395 A.2d 365, 366 (Del. 1978); State v. Grant, 133 A. 790 (Del. Gen. Sess. 1926).

32. Gregory v. State, 616 A.2d 1198, 1203 n.2 (Del. 1992); Mickens v. State, No. 143, 1993, slip op. at 3-4, Moore, J. (Del. Mar. 3, 1994) (ORDER), disposition reported at 640 A.2d 655 (Del. 1994) (TABLE).

33. D.R.E. 609(a)(l).

33.1. Taylor v. State, 849 A.2d 405, 408 (Del. 2004).

34. D.R.E. 609(a)(2).

35. Manna v. State, 945 A.2d 1149, 1155 (Del. 2008); Hull v. State, 889 A.2d 962, 965 (Del. 2005); Morris v. State, 795 A.2d 653, 665-66 (Del. 2002) (kidnapping does not involve dishonesty); Gregory v. State, 616 A.2d 1198, 1204 (Del. 1992).

36. D.R.E. 609(b).  See also Wilson v. Sico, 713 A.2d 923, 924 (Del. 1998); Smith v. State, 560 A.2d 1004, 1008 (Del. 1989); Conlow v. State, 441 A.2d 638, 639 (Del. 1982).

36.1. State v. Davis, Cr. A. Nos. IN94-09-0598 & 1143, slip op. at 11, Alford, J. (Del. Super. Feb. 11, 1997).

37. D.R.E. 609(b); Loper v. State, No. 580, 1992, Moore, J. (Del. Jan. 3, 1994) (ORDER), disposition reported at 637 A.2d 827 (Del. 1994) (TABLE); State v. Davis, Cr. A. Nos. IN94-09-0598 & 1143, slip op. at 13, Alford, J. (Del. Super. Feb. 11, 1997).

38. D.R.E. 609(c). See also Di Norscia v. Garden Quarter, C.A. Nos. 86C-IN-62 & 85C-MR-35, Martin, J. (Del. Super. Aug. 11, 1988) (excluding evidence of conviction which was subsequently vacated). This modifies the common-law rule that a pardon had no effect on the right to use a felony conviction for impeachment. See State v. Grant, 33 Del. 195, 133 A. 790, 791 (Del. Gen Sess. 1926).

39. D.R.E. 609(d); Harris v. State, 695 A.2d 34, 43 (Del. 1997).

39.1. State v. Dickerson, Cr. A. Nos. IN90-12-0141RI-1042RI, slip op. at 9 n.7, Toliver, J. (Del. Super. Mar. 22, 1996).  For a discussion regarding the admission of evidence of other crimes, wrongs or bad acts, see § 20:8.

40. D.R.E. 609(e).

41. Archie v. State, 721 A.2d 924, 927-28 (Del. 1999).

41.1. See Waller v. State, 395 A.2d 365, 366-67 (Del. 1978).

41.2. Archie v. State, 721 A.2d 924, 927-28 (Del 1999).

41.3. Jones v. State, 940 A.2d 1, 16 (Del. 2007).

41.4. Frazier v. IMED Corp., C.A. No. 01C-11-241RRC, slip op. at 8-11, Cooch, J. (Del. Super. Apr. 25, 2003).

41.5. Jones v. State, 940 A.2d 1, 16 (Del. 2007).

© 2010  David L. Finger