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23. Is the question about the prior convictions proper either to impeach the defendant or to prove that the defendant committed the crime?
A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant has testified in her own behalf that someone else must have switched the tag. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud of a retailer by the same means of switching the price tag on a fur-trimmed coat.
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Under certain circumstances, a witness may be impeached by proof of conviction of a crime under Federal Rule of Evidence (FRE) 609. The fact that the witness (including a defendant who testifies in a criminal case) has been convicted of a crime may usually be proved by either eliciting an admission on direct or cross-examination or by the record of conviction.
A witness's character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. See Fed. R. Evid. 609.
Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged. While acknowledging that prior acts or crimes are not admissible to show conformity or to imply bad character, FRE 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant in either a criminal or a civil case.
B is correct. The defendant claimed that the tag was switched by someone else, not by her. However, she has prior convictions for engaging in the same illegal behavior. These prior convictions would be admissible for the two purposes, both substantively and for impeachment. First, under FRE 404(b), these convictions can be used to establish identity — that it wasn't someone else, but the defendant, who likely switched the tag. Second, the convictions are automatically admissible to impeach the defendant's character for truthfulness; fraud convictions involve dishonesty or false statement, and so the court must admit the convictions under FRE 609(a)(2).
A is incorrect. As explained above, the prior convictions are admissible for both purposes, as substantive evidence of the defendant's identity in this case and also for impeaching her character for truthfulness, given that the prior convictions involved dishonesty or false statement.
C is incorrect. Although it is true that the convictions may be properly admitted to impeach the defendant under FRE 609(a)(2), they may also be admitted as substantive evidence to prove the defendant's guilt, specifically to establish identity, given that she denied it was her who switched the tag in this case.
D is incorrect. Although the convictions may be properly admitted substantively under FRE 404(b), they are also admissible to impeach the defendant, as explained above.