Court of Appeals of Mississippi Notes That 10+ Year Old Convictions For Crimes of Dishonesty Are Subject to Strict Balancing Test

Similar to its federal counterpart, Mississippi Rule of Evidence 609(a)(2) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:…

(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.

Moreover, similar to its federal counterpart, Mississippi Rule of Evidence 609(b) provides that

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, does the stringent balancing test of Rule 609(b) apply to convictions of dishonesty or false statement that are more than ten years old? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Davis v. State, 2025 WL 87129 (Miss. App. 2025).

In Davis, “[a]n Oktibbeha County Circuit Court jury convicted Gregory Davis of one count of aggravated assault with a weapon against Eric Bishop and one count of possession of a weapon by a felon.” At trial, Davis’s attorney had tried to impeach a witness for the prosecution with his “two 1995 prior forgery convictions, for which he received six- and seven-year sentences (the ‘stale’ forgery convictions).” Thereafter,

The State objected, and the trial court held a hearing on the issue outside the presence of the jury. The State argued that Davis should not be permitted to question Bell about the convictions because they were outside the ten-year window set forth under Mississippi Rule of Evidence 609(b), which limits the use of such convictions unless the conditions delineated in the rule are met. MRE 609(b)(1)-(2). Davis’s counsel, however, argued that the convictions involved dishonesty, so the ten-year limitation did not apply. After hearing the parties’ arguments, the trial court denied Davis’s request to use the stale forgery convictions.

On appeal, the Court of Appeals of Mississippi concluded that this was the correct decision because convictions for crimes of dishonesty or false statement are subject to the strict balancing test in Rule 609(b).

-CM