Supreme Court of New Hampshire Finds Rule 609(b) Does Not Apply if a Supervised Release Violation Happened in the Past 10 Years
Similar to their federal counterparts, New Hampshire Rules of Evidence 609(a)-(b) read as follows:
(a)General rule. 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.
So, assume a Wanda is convicted of felony larceny and sentenced to five years in prison in 2008, is given early/supervised release in 2012, violates the conditions of her supervised release in 2014, and serves the remaining one year of her original sentence from 2014-2015. If Wanda later testifies at a trial in 2024, does her prior conviction trigger Rule 609(b) based on her early release in 2012? Or, is 2015 the controlling date, meaning her conviction is not more than ten years old?
That was the question addressed by the Supreme Court of New Hampshire in its recent opinion in State v. Paul, 2023 WL 7513600 (N.H. 2023).
According to the court,
we hold that when a defendant is confined following an initial period of release on a suspended sentence, the relevant date for purposes of Rule 609(b) is the later of either the date the defendant is released on the suspended sentence or, if the suspended sentence is subsequently imposed, the date the defendant is released from confinement for that sentence. Here, the defendant was convicted in 1987 and 1994, but, because he subsequently violated the terms and conditions of his suspended sentences and those sentences were imposed, he was not released from confinement for those convictions until 2014 and 2016. Therefore, the relevant dates for determining the ten-year limitation period are 2014 for the 1987 AFSA conviction and 2016 for the attempted escape conviction because these are the dates of “the witness’s conviction or release from confinement for it, whichever is later.”
Moreover, the court added that
Our conclusion that the imposition of a suspended sentence constitutes “confinement for” the original conviction is supported by the decisions of federal courts interpreting Federal Rule of Evidence 609, upon which our rule is modeled….A majority of federal courts that have addressed this question have held that the imposition of a prison sentence due to a violation of supervised release or parole constitutes “confinement for” the original conviction within the meaning of the federal rule.
-CM