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Home » Blog » Impeachment by Prior Conviction

Impeachment by Prior Conviction


CaseState of Tennessee v. Frederick Herron

Issue:  Is Defendant entitled to new trial where trial court would have allowed impeachment by an unspecified prior felony conviction, even though Defendant’s testimony was not proffered?

Facts:  Prior to trial, the trial court ruled that Defendant could not be cross-examined by the State as to prior felony convictions because they were more than 10 years old and overly prejudicial. However, the court told the State it could ask whether Defendant had been convicted of some unspecified felony, and then introduce the convictions if Defendant denied them. Defendant did not testify at trial or proffer what his testimony would have been, and was ultimately convicted.

Appellate Decision:  In a 2-1 decision, the intermediate court affirmed the conviction on what it deemed a “close issue.” The court noted that the trial court’s ruling was a clear violation of Rule 609 pursuant to our Supreme Court’s decision in State v. Galmore. However, the majority held the error to be harmless because Defendant’s failure to proffer his testimony precluded the court from reviewing what its impact would have been, especially in light of the fact that the Defendant was otherwise able to present a strong defense. Judge Witt dissented, writing that a proffer was unnecessary and that “the trial court’s improper influencing the defendant to avoid testifying was especially egregious.”

Review Granted:  June 24, 2014.

Prediction:  Ben thinks the Supreme Court will vacate the conviction for the reasons offered by the dissent. It is clear from the record that the Defendant would have denied committing the offense if he testified. Since the defense managed to identify several inconsistencies and weaknesses in the State’s case (as identified by the majority opinion), the Defendant’s testimony could certainly have tipped the balance.