Prior Convictions At Trial- Can the State used my past against me? 609

Prior Offenses At Trial- Texas Rule of Evidence 609

Defendants who have a lengthy criminal history often think the State can’t use their past convictions against them at trial. They are kind of right. We generally don’t allow the State to argue that since you’ve been a criminal in the past, you are guilty of what you are charged with now. But in many circumstances, the State can use prior convictions against you in trial. The State must follow certain rules to talk about your prior convictions at trial. One of those rules is Texas Rule of Evidence 609, but there are others (38.37CCP for example). Let’s look at 609 today.

Texas Rule of Evidence 609

Under Rule 609 (a) evidence of a prior conviction “must be admitted” if

1- the crime was a felony or involved moral turpitude

2- the probative value of the evidence outweighs its prejudicial effect 

3- and is it elicited from the witness or established by public record.

“Must be admitted” means what it sounds like. Evidence of the prior conviction HAS to come in if you can meet the three-part test. Contrast that to “shall” language which gives a judge the choice to still not do something.

What’s a crime of moral turpitude? They are crimes that are actually bad or wrong, not just something that happens to be illegal. Violent offenses or theft are examples of crimes of moral turpitude. Marijuana possession and speeding are not.

This rule applies to all witnesses, not just the Defendant. So if the State’s star witness (snitch) has a criminal history the same rules apply.

Is there a 10-year rule on prior convictions?

Yes, there is, but it’s not worded that differently than for convictions under ten years. Most people seem to think convictions over ten years old are not admissible at all. That’s not correct. The rule for convictions over ten years old are found in 609(b). 

TRE 609(b) says that if ten years have “passed since the witness’s conviction or release from confinement,” then evidence of a prior conviction must substantially outweigh its prejudicial effect.

What does that mean? Allowing prior convictions into evidence is going to make the jury dislike the witness, or defendant. It can make them think the Defendant is guilty now because he was guilty in the past. It means that the prior conviction evidence should help the jury understand the case before it better. And it must do that to the degree that it offsets the effect of making the jury hate the Defendant for having a prior.

How do you measure the probative value of a prior conviction? Courts are supposed to use the five-factor test below.

(1) the impeachment value of the prior crime

(2) the temporal proximity of the past crime to the charged offense and the witness’s subsequent history

(3) the similarity between the past crime and the offense being prosecuted

(4) the importance of the defendant’s testimony

(5) the importance of the credibility issue

Impeachment value means how well it can be used to negate testimony. If a witness says “I’m a good person so I would never steal anything”, and she has multiple prior theft cases, then those prior convictions have a significant amount of impeachment value.

Temporal proximity means the time the prior offenses happened are close to the current offense, and witnesses other priors. 

The last two are just to make the State’s case easier if the defendant testifies. Credibility is always important if the Defendant testifies, so 4 and 5 really make it easy for the State is the Defendant takes the stand.


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