In a Colorado jury trial, prior criminal convictions are generally admissible, but only if they attack your credibility. This is true if you are in federal court or state court. It is also true if you are in a civil case or a criminal one.
Prior felony convictions for crimes involving dishonesty are especially damning. If you are being charged with a crime, a prior conviction can alter your defense strategy.
Prior convictions are usually admissible as evidence against your credibility
The general rule is that prior convictions are admissible to attack your credibility.
When you take the witness stand in court, you will be questioned by lawyers from both sides. The side that called you to the stand will conduct a direct examination. This is usually designed to get as much information as possible. Once the direct examination is over, the other side will cross-examine you. The cross-examination challenges what you said during the direct examination.
A major question that the jury will have to decide is whether they can trust what you say. This is your credibility, or your character for truthfulness.
In Colorado, your character for truthfulness can be challenged by evidence that you were convicted of a crime in your past.1 Your criminal background is admissible because it may make the jury doubt your testimony.
Only felony convictions are admissible
Only prior convictions for felony-level offenses are admissible in Colorado.2 If a prior felony offense had been expunged, it cannot be admitted in trial.3
A misdemeanor offense cannot be used to attack your credibility.4 This is true unless the offense involved dishonesty. If that is the case, the dishonest statements can be used against you. The judge, however, has to tell the jury to disregard the underlying misdemeanor offense.5
Evidence that you were arrested for a crime but never convicted is also not allowed in court to attack your credibility.6 The rule is the same for acts that “show bad character.”7
Plea deals from earlier, unrelated cases also cannot be used to attack your credibility.8
However, this all changes if the lawyer that called you to the stand questions you about a misdemeanor offense, arrest, or plea deal. If that happens, those prior incidents can be used to attack your credibility.9
The prior conviction can only be used to attack your credibility
A prior conviction can only be used to attack your credibility. It cannot be used for any other reason. For example, it cannot be used to prove you committed the crime you are being charged with because you committed a similar crime in the past.
However, if evidence that you once committed a crime would contradict another statement you made as a witness, the prior conviction can be admitted.
Prior convictions cannot be “more prejudicial than probative”
The trial judge has the discretion to prevent prior convictions from being used to attack your credibility. They can exercise this discretion if allowing the prior conviction would be “more prejudicial than probative.”10
This is meant to keep out evidence of prior convictions that could bias the jury against you, and that do little to attack your credibility.
Prior convictions can change your defense strategy
If you have been convicted of a felony in the past, it can change your defense strategy if you get charged, again.
Taking the stand as a witness in your own defense puts your own credibility at issue.11 The prosecutor can attack your credibility with a prior conviction. This can force you to choose between either:
- Defending yourself by taking the stand, or
- Keeping the prosecutor from telling the jury about your prior offense.
This decision can become especially difficult if the prior conviction was for something dishonest, like:
If you do take the stand and the prosecutor attacks your credibility with a prior conviction like this, it can undermine your testimony.
References:
- Colorado Rule of Evidence 608. See also C.R.S. § 13-90-101. In federal court, see Federal Rule of Evidence 609.
- People v. Ciari, 540 P.2d 1094 (Colo. 1975).
- People v. Wright, 678 P.2d 1072 (Colo. App. 1984).
- People v. Ciari, Supra (“it is improper to impeach a witness with convictions short of felonies,” but it is up to the lawyer to object to an attempt to do so).
- People v. Gillis, 883 P.2d 554 (Colo. App. 1994). See also People v. Segovia, 196 P.3d 1126 (Colo. 2008) (permitting a prior conviction of misdemeanor shoplifting because it “is probative of truthfulness” and could be used to challenge someone’s credibility. However, it was not the conviction that was “probative of truthfulness.” Instead, it was the “underlying circumstances surrounding the act” that mattered); McGill v. DIA Airport Parking, 395 P.3d 1153 (Colo. App. 2016).
- People v. Ciari, Supra.
- Hawkins v. People, 423 P.2d 581 (Colo. 1967).
- People v. Fears, 962 P.2d 272 (Colo. App. 1997).
- People v. Ciari, Supra.
- People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). See also Colorado Rule of Evidence 403 and People v. Segovia, Supra.
- People v. Drake 748 P.2d 1237 (Colo. 1988).
