When can expert witnesses be impeached with their prior criminal conviction?

Federal Rule of Evidence 609 provides:

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.


Attorney John Delaney will be speaking on “Destroying Expert Witnesses” at the SEAK National Expert Witness Conference being held on May 3-4, 2014 in Orlando, FL.

 SEAK’s Upcoming Expert Witness Training Workshops

Destroying Expert Witnesses: How Lawyers Use Weaknesses of Experts

John Delany III, Esq.

One of experts’ worst nightmares is being “destroyed” during cross-examination. Attorney Delany will explain and demonstrate how lawyers capitalize on the weaknesses of experts and help them implode. He will discuss websites, facts and assumptions, withheld information, and other areas where experts are particularly vulnerable during cross-examination. Attorney Delany will offer practical suggestions for experts to insulate themselves from these kinds of frontal assaults by counsel.

John Delany III, Esq. is a founding partner of Delany & O’Brien and is a member of the PA, NJ and NY State and Federal Bars. He is a Certified Civil Trial Attorney by the Supreme Court of New Jersey and by the National Board of Trial Advocacy, Federation of Defense & Corporate Counsel (member) Vice Chair of the toxic Tort Section, author, editor, lecturer, catastrophic claims trial attorney, National Counsel for numerous product manufacturers and a PA/NJ Super Lawyer 2006-20 12. Over 80 major jury trials to a conclusion, 100s of bench, arbitration and mediation cases resolved, over a billion dollars in construction claim cases resolved, over 3.5 billion dollars in toxic torts cases resolved and hundreds of millions of dollars in products, fire loss and transportation cases resolved. He has a concentration in high profile, high stakes litigation against the most prominent plaintiff’s attorneys in the country. He has published and/or presented for Defense Research Institute (DRI), Federation of Defense & Corporate Counsel (FDCC), American Bar Association (TIPS), Mealey’s LexisNexis, RB Litigation, Emerging and Environmental Claims Managers Association (EECMA), and The National Forum for Environmental & Toxic Tort Issues (FETTI.)