United States v. Brewer

United States District Court for the Eastern District of Tennessee · 1978 · Evidence

451 F. Supp. 50 (E.D. Tenn. 1978)

Updated August 22, 2026

EvidenceImpeachment by prior convictionRule 609Fed. R. Evid. 609impeachmentprior convictionsprobative valueprejudicial effect

Facts

The Government sought to use four prior felony convictions to impeach the defendant if he took the stand: a 1960 federal kidnapping conviction and three 1968 Ohio convictions for rape, aggravated assault, and assault with a deadly weapon. The defendant argued that all four were subject to Rule 609(b)'s stricter standards for convictions more than ten years old. As to the kidnapping conviction, the defendant had first been released on parole in 1967, later violated parole after the Ohio convictions, was recommitted to federal custody, and was released again in 1976. The charged case included a current kidnapping count, making the prior kidnapping conviction similar to one charged offense.

Issue

Whether the defendant's prior convictions could be used under Rule 609 to impeach him if he testified, including whether Rule 609(b)'s stricter standard applied and whether the probative value of the convictions outweighed their prejudicial effect under Rule 609(a).

Rule

Under Rule 609(a), a prior felony conviction is admissible to impeach a defendant only if the court determines that its probative value outweighs its prejudicial effect to the defendant. In making that determination, the court may consider the Gordon factors: the nature of the crime, the time of conviction and the witness's subsequent history, the similarity between the past crime and the charged crime, the importance of the defendant's testimony, and the centrality of credibility. Under Rule 609(b), the ten-year period runs from the later of the date of conviction or the witness's release from confinement imposed for that conviction, and reconfinement for a parole violation counts as confinement imposed for the original conviction.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal trial in Knoxville, Dana Mercer is charged with interstate robbery. If Dana testifies, the prosecutor wants to impeach her with a 2009 burglary conviction from Kentucky. Dana was released on parole in 2015, violated parole in 2017, was returned to custody on that conviction, and was released again in 2022.

Which is the best argument about whether the stricter ten-year standard applies?

Explanation. Under the majority opinion, Rule 609(b) measures time from the later of the conviction date or the witness's release from confinement imposed for that conviction. Reconfinement after parole revocation counts as confinement imposed for the original conviction, so the later 2022 release controls. Therefore the conviction is not automatically subject to Rule 609(b)'s stricter standard.