United States v. Fearwell

United States Court of Appeals for the District of Columbia Circuit · 1978 · Evidence

595 F.2d 771 (D.C. Cir. 1978)

Updated August 22, 2026

EvidenceRule 609(a)impeachment by prior convictiondishonesty or false statementpetit larcenyattempted petit larcenyharmless errorcontinuance

Facts

Before trial, the government stated that if Fearwell testified it would impeach him with a prior conviction for attempted petit larceny, and the district court ruled that the impeachment would be allowed. Fearwell had intended to be the only witness in his own behalf, but after the ruling he did not testify. After the ruling, defense counsel sought a continuance so he could pursue other witnesses, but the trial court denied the request. The government's case included testimony from a credit union clerk, Fearwell's brother, and a handwriting expert linking Fearwell to stolen food stamp authorization cards.

Issue

Whether a prior conviction for attempted petit larceny is admissible under Federal Rule of Evidence 609(a) to impeach a defendant who testifies, and if not, whether the trial court's erroneous ruling requires reversal. Also, whether the trial court abused its discretion by denying a continuance to permit the defense to locate and call other witnesses.

Rule

Under Federal Rule of Evidence 609(a), a prior conviction is admissible for impeachment under subsection (a)(1) only if the crime was punishable by death or imprisonment in excess of one year and the court finds probative value outweighs prejudicial effect. Under subsection (a)(2), admissibility is mandatory but limited to a narrow subset of crimes involving deceit, falsification, or deliberate interference with the court's ascertainment of truth that bear directly on the witness's propensity to testify truthfully; petit larceny does not fall within that category. When an erroneous Rule 609 ruling leads a defendant not to testify, harmlessness cannot be determined without knowing what the testimony would have been.

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

At a federal fraud trial in Baltimore, defendant Marcus Hale plans to testify. The prosecutor seeks to impeach him with a prior Maryland conviction for misdemeanor trespass, punishable by up to 12 months in jail, and argues the judge should admit it because it would strongly undermine Marcus's credibility.

Under the majority's approach, how should the court rule on admissibility under Rule 609(a)(1)?

Explanation. Rule 609(a)(1) applies only when the prior crime was punishable by death or imprisonment in excess of one year, plus a balancing determination that probative value outweighs prejudicial effect. A misdemeanor punishable by no more than 12 months does not meet the threshold, so it is outside subsection (a)(1) altogether. That follows the majority's insistence on the statute's punishment limit before any balancing occurs.