Reversible error impeaching with 24-year old felony conviction which was not probative: HOLT V. COM.

CRIMINAL:  Impeachment Evidence
DATE RENDERED: 4/24/2008

The trial court committed reversible error in admitting the twenty-four and twenty-five year old prior felony convictions for impeachment purposes. KRE 609 governs the admissibility of prior convictions to impeach a witness’s credibility. It permits the admission of a prior felony for impeachment, pursuant to certain limitations. See KRE 609(a). However, KRE 609(b) states that "evidence of a conviction under this rule is not admissible" `if it is more than ten (10) years old unless "the probative value substantially outweighs its prejudicial effect." (emphasis added). Clearly, the language of KRE 609(b) creates a presumption of inadmissibility for convictions over ten years old unless the convictions are so substantially probative as to tip the scales back in favor of admissibility. While KRE 609(b) does not divest a trial judge of his discretion in admitting stale convictions, it is precatory in that it acknowledges a much higher threshold for admissibility. Here, the trial judge’s findings of fact failed to support admissibility under the KRE 609(b) balancing test, and, thus, the TC abused its discretion in allowing the introduction of Holt’s twenty-four and twenty-five year old prior convictions. SC disagreed with the Court of Appeals’ determination that the trial judge did engage in sufficient balancing and that, as in Miller, Holt’s prior convictions of theft and receiving stolen property were admissible because they reflected upon his credibility as crimes of dishonesty.

TC did not err in excluding evidence that alleged victim was in pretrial diversion program. TC was correct in its decision that no practical connection existed between alleged victim’s participation in the diversion program and an insinuation of bias.

Digested by Scott Byrd, Olgin and Byrd Attorneys

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