In United States v. Moore, the Eleventh Circuit reviewed Moore’s conviction for unlawful possession of a firearm. Among the issues addressed in the case, the Court considered as a matter of first-impression the time frame for when prior convictions become stale for impeachment under Rule 609(b), Fed. R. Evid.
Why is this important? Rule 609 of the Federal Rules of Evidence concerns impeachment of a witness by evidence of a prior conviction to attach the witness’s truthfulness. In other words, using a prior conviction to say “why should we believe you?” Under Rule 609(a)(1)(B), if the witness is the defendant, evidence about the prior conviction must be admitted if the probative value of the evidence outweighs its prejudicial effect. This is—to put it mildly—a very low burden because if evidence doesn’t have probative value, it isn’t relevant. This isn’t to say that there aren’t times when the prejudicial effect doesn’t require that evidence of prior conviction to be excluded; but, most of the time, the evidence will be admitted.
Rule 609(b), however, flips the equation for admissibility around if more than 10 years have passed since the witness’s conviction or release from confinement, whichever is later. If more than 10 years have passed, then evidence of the conviction is only admissible if the probative value substantially outweighs the prejudicial effect and there must be special facts and circumstances supporting the probative value. This is a much higher burden for the government to meet. As the Eleventh Circuit has previously said in United States v. Pope, 132 F.3d 684, 687 (11th Cir. 1998), Rule 609(b) creates a strong presumption that the evidence is not admissible because it has become stale.
The issue in Moore was when exactly does clock start on “release from confinement.” Specifically, the Court considered whether release from confinement means released from prison or released from the term of probation following imprisonment. Moore had convictions in 2005 and 2006 that were introduced at his 2020 trial. While the prison sentences for those earlier convictions had ended more than 10 years before the 2020 trial, the probation terms ended within 10 years of the 2020 trial. The district court held that the prior convictions were not stale and, therefore, were subject to the presumptively admissible standard of Rule 609(a)(1)(B).
The Eleventh Circuit disagreed. In doing so, the Court joined the Fifth, Seventh, and Eighth Circuits in holding that “release from confinement” means that the clock for 609(b) purposes starts ticking when a defendant is released from prison, not when he or she is released from probation. This was based on the historical understanding of the rule and the fact that Rule 609(b) says confinement, not restrictions.