No Magic Formula: A New Approach for Calculating the Ten Year Time Period for Admission of Prior Conviction Evidence

Abstract:     
Federal Rule of Evidence (FRE) 609 governs admission of prior conviction evidence. Under this rule, it is easier to admit evidence of a prior conviction that is less than ten years old than to admit evidence of older convictions. The ten year period is measured from the later of either the date of conviction or the date of release from confinement.

Calculating the ten year period is fairly straightforward in most cases but becomes confusing when the witness has been confined for violating the terms of probation, parole, or some other period of conditional release. Does the confinement for violation of conditional release (VOCR) constitute confinement for the original crime? Should the nature of the violation affect whether the VOCR confinement constitutes confinement for the original crime? Should the ten year clock start over upon release from VOCR confinement? FRE 609 does not answer these questions.

This article proposes treating the ten year time period as a statute of limitations which should be tolled for any periods of VOCR confinement. Part I traces the history of FRE 609. Part II evaluates different approaches that have been used to calculate the time period. Part III proposes the statute of limitations approach, illustrating how it avoids the harsh results and inconsistencies that occur with the other approaches. This article concludes that the statute of limitations approach will be easier for courts to apply and is more consistent with the policies underlying the rule than other approaches.

Number of Pages in PDF File: 23

Keywords: prior conviction evidence, criminal law, violation of conditional release, federal rule of evidence 609

JEL Classification: K14, K40

Accepted Paper Series