Del. R. Evid. 609

As amended through December 15, 2023

Rule 609 - Impeachment by Evidence of a Criminal Conviction

(a)General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime must be admitted but only if the crime (1) constituted a felony under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involved dishonesty or false statement, regardless of the punishment.

(b)Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 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 it so that the party has a fair opportunity to contest its use.

(c)Effect of pardon, annulment or certificate of rehabilitation. 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 felony, 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 juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case, 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 admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e)Pendency of appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Del. R. Evid. 609

Amended November 28, 2017, effective 1/1/2018.

Comment

The Permanent Advisory Committee on the Delaware Uniform Rules of Evidence recommended retaining D.R.E. 609 as it existed in 2001, with one minor word change in D.R.E. 609(c), and not adopt F.R.E. 609 in effect on December 31, 2000. The Committee recommended rejecting F.R.E. 609 because it applies a different test of admissibility for felony impeachment between a defendant-witness and a witness. The Committee believed that this rule should be the same for all witnesses. A question as to the admissibility of a felony conviction under DRE 609(a)(1) should first be presented to the trial judge out of the presence of the jury to permit the judge to apply the rule's required balancing analysis.

D.R.E. 609(b) tracks F.R.E. 609(b).

D.R.E. 609(c) tracks F.R.E. 609(c) except it substitutes the word "felony" for the words "crime which was punishable by death or imprisonment in excess of one year."

D.R.E. 609(d) and (e) track F.R.E. 609(d) and (e).

For cases illustrating the law covered by D.R.E. 609, see Archie v. State, Del. Supr., 721 A.2d 924 (1998); Wilson v. Sico, Del. Supr., 713 A.2d 923 (1998); Tucker v. State, Del. Supr., 692 A.2d 416 (1996) (Table), Webb v. State, Del. Supr., 663 A.2d 452 (1995); Gregory v. State, Del. Supr., 616 A.2d 1198 (1992).

D.R.E. 609 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.