Section 609. Impeachment by Evidence of Conviction of Crime

(a) Generally. A party may seek to impeach the credibility of a witness by means of the court record of the witness’s conviction or a certified copy, but may not make reference to the sentence that was imposed, subject to Section 403 and the following requirements:

(1) Misdemeanor. A misdemeanor conviction cannot be used after five years from the date on which sentence was imposed, unless the witness has subsequently been convicted of a crime within five years of the time he or she testifies.

(2) Felony Conviction Not Resulting in Committed State Prison Sentence. A felony conviction where no sentence was imposed, a sentence was imposed and suspended, a fine was imposed, or a sentence to a jail or house of correction was imposed cannot be used after ten years from the date of conviction (where no sentence was imposed) or from the date of sentencing, unless the witness has subsequently been convicted of a crime within ten years of the time he or she testifies. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.

(3) Felony with State Prison Sentence Imposed. A felony conviction where a sentence to a State prison was imposed cannot be used after ten years from the date of expiration of the minimum term of imprisonment, unless the witness has subsequently been convicted of a crime within ten years of the time he or she testifies.

(4) Traffic Violation. A traffic violation conviction where only a fine was imposed cannot be used unless the witness has been convicted of another crime or crimes within five years of the time he or she testifies.

(5) Juvenile Adjudications of Delinquency or Youthful Offender. Adjudications of delinquency or youthful offender may be used in subsequent delinquency or criminal proceedings in the same manner and to the same extent as prior criminal convictions.

(b) Effect of Being a Fugitive. For the purpose of this section, any period during which the defendant was a fugitive from justice shall be excluded in determining time limitations under the provisions of this section.

NOTE

This section is derived from G. L. c. 233, § 21, except for Section 609(a)(5), which is derived from G. L. c. 119, § 60.

Definition of Conviction. For the purpose of impeachment, a conviction “means a judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty.” Forcier v. Hopkins, 329 Mass. 668, 670, 110 N.E.2d 126, 127 (1953), and cases cited. Thus, a case that is continued without a finding, with or without an admission, is not a conviction and may not be used for impeachment under this section. See Wilson v. Honeywell, Inc., 409 Mass. 803, 808–809, 569 N.E.2d 1011, 1015 (1991).

Misdemeanors/Probation. A misdemeanor conviction for which a defendant was placed on probation cannot be used for impeachment, because straight probation does not constitute a “sentence” for purposes of the statute. Commonwealth v. Stewart, 422 Mass. 385, 387, 663 N.E.2d 255, 257 (1996).

Probation Violation. The proper use of probation violations is as follows:

“Although convictions within the time frames established by G. L. c. 233, § 21 . . . , may be used to impeach a witness’s character for truthfulness, probation violations may not be so used. Nevertheless, probation violations may be used ‘to show bias on the part of the witness who might want to give false testimony to curry favor with the prosecution with respect to his case.’ Commonwealth v. DiMuro, 28 Mass. App. Ct. 223, 228 (1990).” (Citation omitted.)

Commonwealth v. Roberts, 423 Mass. 17, 20–21, 666 N.E.2d 475, 478 (1996).

Suspended Sentence. A suspended sentence constitutes a sentence. Forcier v. Hopkins, 329 Mass. 668, 670–671, 110 N.E.2d 126, 127–128 (1953).

Fine. A fine constitutes a sentence. Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 781, 716 N.E.2d 659, 663–664 (1999).

Scope. “[C]onvictions relevant to credibility are not limited to crimes involving dishonesty or false statements.” Commonwealth v. Smith, 450 Mass. 395, 407, 879 N.E.2d 87, 97 (2008).

Discretion. The judge must exercise discretion before deciding whether to admit prior convictions for impeachment. Commonwealth v. Ruiz, 400 Mass. 214, 215, 508 N.E.2d 607, 608 (1987). The factors that are relevant to the exercise of discretion include “whether the prior conviction is substantially similar to the crime charged, whether the prior conviction involves a crime implicating truthfulness, whether there were other prior convictions that the Commonwealth could have used to impeach the defendant, and whether the judge conducted the required balancing test.” Commonwealth v. Little, 453 Mass. 766, 773, 906 N.E.2d 286, 293 (2009). The balancing test is the one set forth in Section 403, Grounds for Excluding Relevant Evidence. See, e.g., Commonwealth v. Roucoulet, 22 Mass. App. Ct. 603, 608, 496 N.E.2d 166, 169 (1986) (reversing conviction in drug case based on improper admission of prior criminal convictions for drug offenses). A judge is not required to exercise discretion in the absence of an objection or motion in limine. Commonwealth v. Bly, 444 Mass. 640, 653, 830 N.E.2d 1048, 1059 (2005). The discretion to exclude prior convictions applies equally to the testimony of parties and other witnesses. Commonwealth v. Manning, 47 Mass. App. Ct. 923, 923, 714 N.E.2d 843, 844 (1999). “The defendant may challenge the judge’s ruling even if he never testifies.” Commonwealth v. Little, 453 Mass. at 773, 906 N.E.2d at 292. But see Section 103(a)(3), Rulings on Evidence, Objections, and Offers of Proof: Admission or Exclusion of Evidence. “Generally, in order for the prejudicial effect to outweigh the probative value of prior conviction evidence, the ‘prior conviction must be substantially similar to the charged offense’” (emphasis omitted). Commonwealth v. Leftwich, 430 Mass. 865, 869, 724 N.E.2d 691, 696 (2000), quoting Commonwealth v. Drumgold, 423 Mass. 230, 250, 668 N.E.2d 300, 314 (1996). However, “[a]lthough similarity of an offense weighs in favor of exclusion, there is no per se rule of exclusion of prior conviction of a similar crime for which the defendant is on trial.” Commonwealth v. Bly, 444 Mass. at 654, 830 N.E.2d at 1059. A trial judge has discretion to permit impeachment of a sexual assault complaining witness by prior convictions of sexual offenses (which would otherwise be inadmissible under the rape-shield statute, G. L. c. 233, § 21B), but in exercising that discretion, the judge must consider the purposes of the rape-shield statute. Commonwealth v. Harris, 443 Mass. 714, 726–728, 825 N.E.2d 58, 68–69 (2005). See Section 412, Past Sexual Conduct and Alleged Sexual Reputation (Rape-Shield Law).

Proof of Conviction. The conviction must be proven by production of a court record or a certified copy. Commonwealth v. Puleio, 394 Mass. 101, 104, 474 N.E.2d 1078, 1080 (1985). But see Commonwealth v. Hamilton, 459 Mass. 422, 439, 945 N.E.2d 877, 889–890 (2011) (proof of prior conviction for purpose other than to impeach truthfulness of witness does not require court record or certified copy). An attorney must have a reasonable evidentiary basis for any question concerning a prior criminal conviction. See Commonwealth v. Johnson, 441 Mass. 1, 5 n.4, 802 N.E.2d 1025, 1028 n.4 (2004). It is presumed that the defendant was represented by counsel in the underlying conviction, and the Commonwealth does not have to prove representation unless the defendant makes a showing that the conviction was obtained without counsel or a waiver of counsel. Commonwealth v. Saunders, 435 Mass. 691, 695–696, 761 N.E.2d 490, 493–494 (2002).

Evidence of Conviction. When a record of a witness’s criminal conviction is introduced for impeachment purposes, the conviction must be left unexplained; but when “cross-examination goes beyond simply establishing that the witness is the person named in the record of conviction, the proponent of the witness may, in the judge’s discretion, properly inquire on redirect examination about those collateral matters raised during the cross-examination.” Commonwealth v. McGeoghean, 412 Mass. 839, 843, 593 N.E.2d 229, 232 (1992). See Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 343–345, 754 N.E.2d 76, 80–81 (2001). Any reference to the length of the sentenced imposed should be excluded. Commonwealth v. Eugene, 438 Mass. 343, 352–353, 780 N.E.2d 893, 900–901 (2003).

A witness may testify about his or her prior convictions for criminal conduct on direct examination in order to blunt the anticipated use of such evidence on cross-examination. Commonwealth v. Daley, 439 Mass. 558, 563, 789 N.E.2d 1070, 1075 (2003). See Commonwealth v. Blodgett, 377 Mass. 494, 502, 386 N.E.2d 1042, 1046–1047 (1979). Despite an earlier in limine order excluding evidence of a prior conviction, a witness who testifies untruthfully opens the door to admission of previously excluded evidence to rebut the false testimony. Commonwealth v. Roderick, 429 Mass. 271, 273–275, 707 N.E.2d 1065, 1068–1069 (1999). Evidence of a stale prior conviction, although inadmissible under G. L. c. 233, § 21, may still be admissible for probative nonimpeachment purposes. Commonwealth v. Jacobs, 6 Mass. App. Ct. 867, 868, 374 N.E.2d 354, 356 (1978). See Commonwealth v. Lavoie, 47 Mass. App. Ct. 1, 4 n.7, 710 N.E.2d 1011, 1014 n.7 (1999).

Redaction. Upon request, the judge has discretion to redact the nature of the prior offense and restrict impeachment to the fact of a conviction of “a felony.” Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 342, 754 N.E.2d 76, 79 (2001). Any extraneous entries included in the record of criminal conviction should not be shown to the jury, and if, in the judge’s opinion, masking the extraneous material risks inducing the jury to speculate about the missing portions of the record, the judge should refuse to mark the records as exhibits. Commonwealth v. Ford, 397 Mass. 298, 300, 490 N.E.2d 1166, 1168 (1986). See Commonwealth v. Ioannides, 41 Mass. App. Ct. 904, 905–906, 668 N.E.2d 845, 846 (1996).

Pardons, Sealing of Record, Expungement, Commutation of Sentence, Appeal Pending. It appears that pardons and the sealing or expungement of one’s criminal record cannot be used for impeachment purposes under this section. See Commonwealth v. Childs, 23 Mass. App. Ct. 33, 35, 499 N.E.2d 299, 300 (1986), aff’d, 400 Mass. 1006, 511 N.E.2d 336 (1987). Cf. G. L. c. 127, § 152 (pardon); G. L. c. 276, §§ 100A–100C (sealing); G. L. c. 94C, §§ 34–35 (sealing). Conversely, it appears that the commutation of a sentence may be used. Rittenberg v. Smith, 214 Mass. 343, 347, 101 N.E. 989, 990 (1913) (“The commutation of the sentence did not do away with the conviction. Only a full pardon could do that.”). It also appears that the pendency of an appeal does not prevent the use of a conviction for impeachment purposes. The fact that a defendant’s prior conviction was vacated after the trial in which it was used to impeach him did not affect its status as a “final judgment” for purposes of G. L. c. 233, § 21. Commonwealth v. DiGiambattista, 59 Mass. App. Ct. 190, 199, 794 N.E.2d 1229, 1236 (2003), judgment rev’d on other grounds, 442 Mass. 423, 813 N.E.2d 516 (2004). See Fed. R. Evid. 609(e); Proposed Mass. R. Evid. 609(f). The term conviction means “a judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty. . . . In a criminal case the sentence is the judgment.” Forcier v. Hopkins, 329 Mass. 668, 670–671, 110 N.E.2d 126, 127 (1953). “The sentence[,] until reversed in some way provided by the law, stands as the final judgment binding upon everybody.” Commonwealth v. Dascalakis, 246 Mass. 12, 20, 140 N.E. 470, 474 (1923).