Evidence Of Prior Convictions: Can You Be Asked About Your Past Criminal Record If You Testify In Your Own Defense?

A thorny problem for a defendant in a criminal case concerns the question whether the prosecutor can ask him about his prior criminal record if he takes the stand in his own defense. Obviously, the prosecutor wants the jury to know about that prior record because she thinks it may help her get a conviction. Obviously, the defendant wants to avoid that risk.

Can the prosecutor ask the question? Like many aspects of law, the answer is, “It depends.”

Under Rule 609 of the Tennessee Rules of Evidence, the following conditions must be satisfied in order for the prosecutor to cross-examine the defendant about prior criminal convictions:

1. The prior crime must be punishable by death or imprisonment in excess of one year under the law of the jurisdiction in which the conviction took place or, if not so punishable, the crime must have involved dishonesty or false statements.

That means that misdemeanor crimes carrying sentences of 11 months, 29 days, and not involving dishonesty (e.g., drug possession and DUI) cannot be brought up by the prosecutor in a later trial. So, for example, if you are charged with DUI, 2nd offense, the prosecutor cannot cross-examine you about your previous DUI conviction.

2. The State must give the defendant reasonable written notice, before trial, of its intent to ask about the prior conviction. If the defendant objects, the court must then determine whether the conviction’s probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of the prior conviction before the trial, but can also do so during the trial.

In other words, you have to be informed by the State, in writing and before trial, if it is going to try to use your prior conviction against you during your cross-examination…. and you get a chance to persuade the court not to allow it in order to prevent the jury from being inflamed against you unfairly.

3. The prior conviction cannot be more than 10 years old (measured form the date of your release from prison or the date of the conviction if you were not incarcerated).

If you are a defendant with a prior criminal history, be sure to be totally candid about that history with your lawyer so that he or she can help you make an intelligent and informed decision about whether you will testify at your trial.