On January 17th, the Tennessee Court of Appeals considered the clash between two rules of evidence. As most attorneys know, certain types of criminal convictions are admissible against any witness for purposes of impeachment. In order to qualify, the offense must either 1) involve dishonesty or a false statement; or 2) be punishable by death or imprisonment in excess of one year. Tenn. R. Evid. 609 states that, if the correct procedures are followed, such evidence “may be admitted.”
In Anderson v. Poltorak, et. al, M2015-02512-COA-R3-CV, available here, the plaintiff in a personal injury suit had been convicted of three eligible offenses, all related to child pornography. But the plaintiff had an argument for exclusion: Tenn. R. Evid. 403 provides that even relevant evidence may be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice.” The Davidson County trial court split the difference, ruling defendants could inquire as to whether plaintiff had three prior felony convictions, but not as to the nature of the offenses, because the probative value of such testimony would be outweighed by its highly prejudicial effect. The trial went forward and a verdict for the plaintiff was returned.
On appeal, defendants argued Rule 609 was nondiscretionary: they had the right to put on evidence of the convictions, which they admitted were very prejudicial. They should have been permitted to inform the jury that the plaintiff was convicted of child pornography offenses. The Court of Appeals affirmed, holding as follows:
The plain language of Tennessee Rule of Evidence 609 contemplates that the trial court is to exercise discretion when admitting evidence of a witness’s prior convictions for impeachment purposes. Specifically, the plain language of Rule 609 states that “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted.”
The Court went on to note that, prior to the adoption of Rule 609, Tennessee relied on Federal Rule 609, which states such evidence “shall be admitted”. The use of “may” instead of “shall” intentionally left courts the discretion to exclude such evidence. Given this holding, practitioners should file motions as soon as practicable to establish the admissibility of past convictions, in order to properly evaluate each case.