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Excluding Evidence of a Witness’s Prior Criminal Convictions: Remoteness & Moral Turpitude

May 10, 2010 • Posted By Douglas R. Rosenzweig • Trial Practice

In preparing a case for trial, it often comes to pass that one or more of the witnesses in the case have a prior criminal record. In cases where there is a significant amount of money on the line, you can be sure that opposing counsel has done her homework carefully and is chomping at the bit to destroy the witnesses' credibility with an in depth and lengthy cross-examination regarding the prior misdeeds. This can have a significant impact on a case, particularly if the witness's credibility will be a determining factor in obtaining a defense verdict.

First the bad new: CPLR §4513 states: "A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination ... or by the record."

Notwithstanding CPLR §4513, the scope of cross-examination and the determination of what evidence may be introduced for impeachment purposes lies within the sound discretion of the Trial Judge. People v Hults, 76 N.Y.2d 190, 199, 556 N.E.2d 1077, 557 N.Y.S.2d 270 (1990). Attorneys attempting to keep out evidence of such prior convictions must argue that (1) the conviction is too remote to be relevant; and (2) that the crime does not involve moral turpitude. Either way, the attorney will attempt to demonstrate that the prejudicial effect of this evidence far outweighs any probative value.

New York State Courts have held that "the nearness or remoteness of the prior conviction is a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness." People v. McCleaver, 78 Misc. 2d 48, 354 N.Y.S.2d 847 (Supreme Ct. NY County, 1974).

While New York State does not appear to have an exact standard as to when a conviction becomes too remote to be admissible, the Federal Rules of Evidence provide ample guidance. Federal Rule 609(b) states that crimes which occurred more than 10 years since the date of the conviction or of the release of the witness (whichever is later) are too remote unless the proponent of the evidence can demonstrate the remote crimes probative value.

Case law analyzing CPLR §4513 has also indicated that the conviction must also have some tendency to show moral turpitude to be relevant on the credibility issue. Badr v. Hogan, 75 N.Y.2d 629, 554 N.E.2d 890, 555 N.Y.S.2d 249 (1990). Moral Turpitude has been defined by New York State Courts as, "the quality of crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita ... an act of baseness, vileness or depravity in the private or social duties which man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man." People v Ferguson, 55 Misc.2d 711, 286 N.Y.S.2d 976, 981 (1968)(citations omitted). "Moral turpitude is conduct that is contrary to justice, honesty or good morals ..." Black's Law Dictionary (Pocket Edition, 1996).

In a recent case, our firm was able to successfully argue that a witness's prior felony conviction in the 1980's was too remote to warrant questioning at trial. The trial judge limited plaintiff's inquiry to one question regarding the conviction, and did not permit inquiry into the underlying facts.

In sum, a prior criminal conviction is only appropriate grounds for cross-examination if it is a crime of moral turpitude and not too remote from the time of trial. Attempts to cross-examine on a prior criminal conviction should always be vigorously contested with arguments that the prejudicial impact outweighs any probative value.