New Jersey Court Finds Release From Probation is Not Release From Confinement For Impeachment Purposes

New Jersey Rule of Evidence 609(b)(1) states that 

If, on the date the trial begins, more than ten years have passed since the witness’ conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.

So, assume that a witness testifying at a trial in 2017 was convicted of a crime in 2005 and sentenced to 4 years probation. Because that probation ended in 2009, would that conviction fall beyond the scope of Rule 609(b)(1) because the “release from confinement” confinement for it was less than 10 years ago?

This was the question presented to the Superior Court of New Jersey, Appellate Division in State v. Hedgespeth, 236 A.3d 1020 (N.J.A.D. 2020). And the court concluded that

We are persuaded that the plain language of N.J.R.E. 609, coupled with the construction of identical language by the federal courts and sister states, as well as our prior interpretation of confinement in both related and unrelated contexts lead us to conclude that probation does not qualify as confinement under N.J.R.E. 609(b)(1). As we stated in Clarity, the “generally accepted meaning [of confinement] requires that the confined individual be ‘imprisoned or restrained,’ ‘deprive[d] … of … liberty,’ or ‘place[d] in prison or jail.’ ” 454 N.J. Super. at 609, 186 A.3d 919 (alterations in original) (first quoting Black’s Law Dictionary 362 (10th ed. 2014), then quoting Ballentine’s Law Dictionary 244 (3d ed. 1969)). Although a defendant is not technically a free citizen while on probation, he or she is no longer confined or imprisoned as required under N.J.R.E. 609(b)(1).

Therefore, if a witness is convicted and given probation, the date of conviction is the operative date for Rule 609(b)(1) purposes.

-CM