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South Carolina
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RULE 609

RULE 609
IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

For the purposes of this rule, a conviction includes a conviction resulting from a trial or any type of plea, including a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation or Other Equivalent Procedure. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of 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 if conviction of the crime would be admissible to attack the credibility of an adult.

(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Note:

Except for subsections (a) and (d), this rule is identical to the federal rule.

Subsection (a) is identical to the federal rule except for the addition of the last sentence. This addition was made to make it clear that the term "conviction" includes a conviction resulting from a trial or any type of plea, to include a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Allowing a plea of nolo contendere to be used for impeachment is consistent with the prior law. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981). Subsection (a) does change the law in South Carolina. The prior law was that a witness could be impeached by evidence that the witness had been convicted of a crime of moral turpitude. State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct.App.1985), cert. denied, 286 S.C. 127, 332 S.E.2d 533 (1985); State v. Harvey, 275 S.C. 225, 268 S.E.2d 587 (1980). Further, the standard for balancing probative value against prejudicial effect was the same for all witnesses, to include the accused in a criminal case. Green v. Hewett, 305 S.C. 238, 407 S.E.2d 651 (1991). This subsection does not use the moral turpitude standard, but instead allows impeachment with a conviction for any crime which carries a maximum sentence of death or imprisonment for more than one year. Further, the rule provides for a different standard for balancing probative value and prejudicial effect for an accused who is a witness.

Regarding subsection (b), the adoption of a general ten year limit on the use of convictions for impeachment constitutes a change in South Carolina law. The former case law did not set forth a time limit on the use of convictions for impeachment. Green v. Hewett, supra. Instead, the determination whether a conviction was too remote rested in the discretion of the trial judge. Horton v. State, 306 S.C. 252, 411 S.E.2d 223 (1991); State v. Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984); State v. Johnson, 271 S.C. 485, 248 S.E.2d 313 (1978). The ten year limit was adopted to help guide trial courts in making uniform determinations in this area.

Subsection (c) regulates the effect of a pardon, annulment, certificate of rehabilitation or other equivalent procedures on the admissibility of a conviction for impeachment purposes. As to the effect of pardons issued by South Carolina, this subsection is arguably more restrictive than S.C. Code Ann. § 24-21-990(5) (Supp. 1993) which provides that a witness cannot be impeached by a conviction for which the witness received a pardon unless the crime indicates a lack of veracity.

The language of subsection (d) of the federal rule, which allows evidence of juvenile adjudications only in criminal cases and does not allow such evidence against the accused, was not used so that the South Carolina rule would conform with state law. Juvenile adjudications are admissible in this state to impeach any witness, including the accused, if the conduct would be criminal if it were committed by an adult. State v. Mallory, 270 S.C. 519, 242 S.E.2d 693 (1978). It should be noted that S.C. Code Ann. § 20-7-780 (Supp. 1993), which makes juvenile records confidential unless otherwise ordered by the family court, may limit access to records of juvenile adjudications.

No South Carolina authority existed as to the effect of the pendency of an appeal on the admissibility of evidence of the conviction. Subsection (e) of the federal rule was adopted verbatim.