My lawyer and I have been discussing my prior record because I have new charges and I am debating whether I should testify in my new case. She told me my prior record may come into evidence if I testify, but it will not come in if I don’t. My lawyer also told me we may want to come out in front of this issue. Also my lawyer told me the type of convictions in my prior record effect what can come into to evidence based on my testimony. All of this seems very complicated. I want to testify but I don’t want to screw up my case by demanding that I testify. I really like my lawyer and I think she knows what she is doing. Can you explain how my prior record effects my ability to testify?

The basic rule is that if you have a prior conviction for a crime involving dishonesty or false statements, and you testify, the conviction comes into evidence. An example of this is retail theft, theft, robbery, burglary, false statements to law enforcement, perjury, fraud, etc. The rule is PA Rule of Evidence 609:

Rule 609. Impeachment by Evidence of a Criminal Conviction.

(a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty 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 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 Pardon or Other Equivalent Procedure. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of one of the following:

(1) a pardon or other equivalent procedure based on a specific finding of innocence; or

(2) a pardon or other equivalent procedure based on a specific finding of rehabilitation of the person convicted, and that person has not been convicted of any subsequent crime.

(d) Juvenile Adjudications. In a criminal case only, evidence of the adjudication of delinquency for an offense under the Juvenile Act, 42 Pa.C.S. § § 6301 et seq., may be used to impeach the credibility of a witness if conviction of the offense would be admissible to attack the credibility of an adult.

(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.

Practically, the district attorney cannot ask you about it. They must subpoena your records and call the clerk of courts to testify about the certified record. Many times, if I know my client is going to testify and they have convictions for crimen falsi (dishonesty or false statements), I may tell the jury about it in my opening statement and ask my client about it on the stand. By doing this it tells the jury, that my client has the convictions from me instead of the prosecutor. At that point, the prosecutor does not need to call the clerk because I have told the jury about the convictions, so its much more of a soft landing. However, the jury still now knows about the conviction.

Also, there are many exceptions to all rules of law. If you have a previous conviction for assault, and you testify in a new assault case and claim you are a non-violent person who would never get in a fight, the prosecutor could do the same as above with your prior assault conviction. The same applies in drug cases. If you have a previous conviction for selling drugs, you are currently charged with selling drugs, and you testify that the reason you had the drugs was that you are a heavy user, then the prosecutor can do the same with your previous drug selling conviction.

The answer to whether its appropriate to testify when you have one of these convictions is very fact specific. For example, if you have an open murder case that you didn’t do and you want to claim alibi and testify where you were that day, but you have an eight year old conviction for retail theft, I think I would call you to stand.

 

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