N.M. R. Evid. 11-609
N.M. R. Evid. 11-609
Committee commentary. - The language of Rule 11-609 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
[As amended by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes. The 2007 amendment, approved by Supreme Court Order No. 07-8300-035, effective February 1, 2008, amended Paragraph A to change "credibility" to "character for truthfulness" and to provide in Subparagraph (2) that evidence that a witness has been convicted of a crime may be admitted "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness". The 1996 amendment, effective February 1, 1996, added Paragraph C and redesignated former Paragraphs C and D as Paragraphs D and E. The 1993 amendment, effective December 1, 1993, substituted "court" for "judge" in two places in Paragraph C. The 1990 amendment, effective January 1, 1991, rewrote Paragraph A. Compiler's notes. - This rule is similar to Rule 609 of the Federal Rules of Evidence. Most of the following cases were decided pursuant to 20-2-3, 1953 Comp. (now repealed by Laws 1973, ch. 223, § 2 ), which was similar to this rule.
For rules regarding admissibility of character evidence and methods of proving it, see Rules 11-404 and 11-405 NMRA. For governor's power to pardon and reprieve, see N.M. Const., Art. V, § 6. For effect of criminal conviction upon civil rights, and the governor's power to pardon, see Section 31-13-1 NMSA 1978. I. GENERAL CONSIDERATION. Character. - Where, on direct examination, the defendant denied that he had ever been convicted of a crime, the defendant's prior juvenile adjudication was not admissible on cross-examination to rebut the false impression the defendant may have created that he was a law abiding person who had not committed a criminal act in the past. State v. Sena, 2008-NMCA-083, 144 N.M. 271, 186 P.3d 900, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677. Constitutional protection of right to cross-examine fully. - The comprehensiveness of cross-examination does not lie solely within the limitation of these rules. The right to fully cross-examine, particularly when the evidence sought to be developed is such as would allow inferences of motive to lie because of the witness's vulnerable status as a parolee or a suspect, is protected by the federal and state constitutions. State v. Baldizan, 1982-NMCA-142, 99 N.M. 106, 654 P.2d 559. Allowing evidence of prior convictions not violation of due process. - Defendant, during direct examination at trial, testified to a prior conviction. Reasoning that he was forced to introduce this evidence in order to diminish the prejudicial effect of the state doing so during cross-examination he claimed that Section 20-2-3, 1953 Comp. (now repealed) violates due process because testimony as to prior convictions prejudices his right to testify in his own behalf. This argument failed because when an accused takes the witness stand he is in the same position as any other witness and is not entitled to have his testimony falsely cloaked with reliability by having his credibility protected against the truth-searching process of cross-examination. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095. The balancing provision of Subparagraph A(1), applicable in criminal cases, should not apply to civil cases in New Mexico. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85. Subparagraph A(1) evidence is always subject to possible exclusion under Rule 11-403 NMRA, relating to exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85. This rule contains the test to be applied when defendant attempts to keep evidence out; it simply does not deal with the situation where defendant is introducing evidence on a past conviction. State v. Noland, 1986-NMCA-067, 104 N.M. 537, 724 P.2d 246. Purpose of questioning witness as to prior convictions is to test the credibility of the witness, and newly discovered evidence as to prior convictions could only be used for impeachment and would have been cumulative to the impeachment testimony introduced at the trial. Sierra Blanca Sales Co. v. Newco Indus., Inc., 1972-NMCA-153, 84 N.M. 524, 505 P.2d 867, cert. denied, 84 N.M. 512, 505 P.2d 855. Conviction is fact and not open to explanation. - Where conviction of a criminal offense is shown against a witness for purpose of affecting his credibility, such conviction should stand as a fact and not be open to explanation by the witness. Territory v. Garcia, 1910-NMSC-045, 15 N.M. 538, 110 P. 838. Showing a conviction includes eliciting the time of the conviction. State v. Mares, 1991-NMCA-052, 112 N.M. 193, 812 P.2d 1341. "Convicted" includes a jury verdict of guilty; that verdict may be used to impeach a witness. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582. Pardon restores competency but not credit as witness. - The pardon of a convict operates to restore his competency as a witness, but does not restore his credibility. The conviction of an infamous offense is evidence of bad character for truth. Territory v. Chavez, 1896-NMSC-015, 8 N.M. 528, 45 P. 1107. Evidence of prior conviction is admissible within confines of trial court's discretion. State v. Baca, 1974-NMCA-022, 86 N.M. 144, 520 P.2d 872. Community correctional center as state prison. - An out-of-state community correctional center, to which the defendant had been transferred following his prior conviction, was a state prison for purposes of the time limitation set forth in Paragraph B. State v. Hall, 1987-NMCA-145, 107 N.M. 17, 751 P.2d 701. Trial court is allowed broad discretion in controlling extent of cross-examination of an accused directed at testing his credibility. The primary responsibility is on the trial court to determine when the cross-examination should be limited, because the legitimate probative value on the credibility of the accused may be outweighed by its illegitimate tendency, effect or purpose to prejudice him as a defendant. The discretion of the trial court in making this determination will not be disturbed on appeal, unless the appellate court can say the trial judge's action was obviously erroneous, arbitrary and unwarranted. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62. Probative value determination of prior conviction cross-examination within court's discretion. - The trial court must exercise its discretion in determining the probative value of cross-examination concerning defendant's prior convictions and having done so, that discretion in making this determination will not be disturbed on appeal, unless the appellate court can say the trial judge's action was erroneous, arbitrary and unwarranted. State v. Sibold, 1972-NMCA-056, 83 N.M. 678, 496 P.2d 738. Evidence admissible for one purpose is not excluded because inadmissible for another purpose. State v. Wyman, 1981-NMCA-087, 96 N.M. 558, 632 P.2d 1196. Evidence of conduct not excluded because adjudication excluded. - Specific conduct, admissible on cross-examination to attack credibility, is not to be excluded because an adjudication based on that conduct is excluded. State v. Wyman, 1981-NMCA-087, 96 N.M. 558, 632 P.2d 1196. All reasonable care, and utmost good faith, must be exercised by the prosecutor when questioning an accused about prior convictions, to the end that an accused is not prejudiced by suggestions that he has been convicted of a misdemeanor or felony, when in fact he has not been so convicted. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62; State v. Robinson, 1983-NMSC-040, 99 N.M. 674, 662 P.2d 1341, cert. denied, 464 U.S. 851, 104 S. Ct. 161, 78 L. Ed. 2d 147 (1983). No prejudicial guilt by association with felons shown. - Where two of the state's witnesses pled guilty to an offense arising out of the same mortgage brokering business in which defendant was involved, the jury was entitled to know that the witnesses were convicted felons, and the mere fact that defendant was associated with people who, at one time, were convicted of a felony did not show the requisite prejudice to warrant a reversal of defendant's convictions for general fraud and securities fraud. State v. Ross, 1986-NMCA-015, 104 N.M. 23, 715 P.2d 471. II. EVIDENCE OF PRIOR CONVICTION. A. IN GENERAL. Purpose of the 1976 amendment of Subparagraph A(1) was to emphasize concern for the defendant when prior felony convictions of any witness are offered in evidence. State v. Day, 1978-NMCA-018, 91 N.M. 570, 577 P.2d 878. Proof of commission of another crime, for impeachment purposes, held prejudicial error. Casaus v. State, 1980-NMSC-017, 94 N.M. 58, 607 P.2d 596. Prejudicial impact alone does not render evidence inadmissible. - While there was a certain similarity between the prior crime of assault with a deadly weapon upon a peace officer and the present crime of murdering a peace officer with a firearm and, because of the similarity, the possibility existed that the introduction of evidence of that prior crime would have had at least some prejudicial impact against the defendant, this, by itself, did not render the evidence inadmissible. The trial court had to determine whether the probative value of the prior conviction, for impeachment purposes only, outweighed its prejudicial effect. State v. Hall, 1987-NMCA-145, 107 N.M. 17, 751 P.2d 701. Erroneous admission of evidence of accused's prior crimes is error in absence of special circumstances. Casaus v. State, 1980-NMSC-017, 94 N.M. 58, 607 P.2d 596. Proof of separate convictions not generally admissible. - It is generally held that proof of convictions of other and separate criminal offenses by the defendant is not admissible and that it is prejudicial error to admit such proof. State v. Rowell, 1966-NMSC-231, 77 N.M. 124, 419 P.2d 966. Damage caused by questioning concerning defendant's past convictions of crimes not repaired by sustaining objection. - The damage implicit in the asking of the question concerning defendant's past convictions of crimes was in no way repaired by virtue of the fact that the objection was sustained. Neither was it overcome by the admonitions given the jury, therefore, the asking of such a question constituted reversible error. State v. Rowell, 1966-NMSC-231, 77 N.M. 124, 419 P.2d 966. Exceptions to general rule regarding evidence of offenses and crimes. - There are several exceptions to the general rule that evidence of offenses and crimes, other than that for which the defendant is on trial, cannot be introduced. Among these exceptions are proof of motive, intent, absence of a mistake or accident, a common scheme or plan or the identity of the person charged with the commission of the crime. State v. Lopez, 1973-NMCA-148, 85 N.M. 742, 516 P.2d 1125. Factors for consideration. - Some of the factors which should be considered by the trial court when deciding whether to admit evidence of prior convictions not involving dishonesty, for impeachment purposes, include: (1) the nature of the crime in relation to its impeachment value as well as its inflammatory impact; (2) the date of the prior conviction and the witness's subsequent history; (3) similarities, and the effect thereof, between the past crime and the crime charged; (4) a correlation of standards expressed in Paragraph A of this rule with the policies reflected in Rule 11-404; (5) the importance of the defendant's testimony; and (6) the centrality of the credibility issue. State v. Lucero, 1982-NMCA-102, 98 N.M. 311, 648 P.2d 350. Failure to perform on-the-record balancing not reversible error. - The court's failure to articulate on the record its balancing test for admitting prior convictions, required by Subparagraph (1) of Paragraph A, of this rule was not reversible error where it was evident that there were reasons for and against the admission of the conviction and the court rejected defendant's argument, citing case law. State v. Trejo, 1991-NMCA-143, 113 N.M. 342, 825 P.2d 1252. Subparagraph A(1) contemplates admission into evidence of felony convictions, regardless of whether they concerned dishonesty or false statement. The supreme court's adoption of this rule is tantamount to a determination that any felony punishable by imprisonment in excess of one year bears on credibility. State v. Lucero, 1982-NMCA-102, 98 N.M. 311, 648 P.2d 350. Where underlying acts for prior conviction later in time. - The court did not err in admitting evidence of defendant's prior conviction for impeachment purposes where the underlying acts for the conviction took place after the acts for which he was on trial. State v. Trejo, 1991-NMCA-143, 113 N.M. 342, 825 P.2d 1252. Accused on witness stand cannot avoid cross-examination. - When an accused takes the witness stand he is in the same position as any other witness and he is not entitled to have his testimony falsely cloaked with reliability by having his credibility protected against the truth-searching process of cross-examination. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970). Where the defendant was charged with contributing to the delinquency of a minor, and defendant denied being in an adult bookstore other than to repair the air conditioner, the state was entitled to impeach his testimony with evidence, using the defendant's nolo contendere plea to a different count of contributing to the delinquency of a minor, that he had been in that bookstore with the minor females. State v. Cawley, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574. Prior criminal convictions may be shown through cross-examination of accused. - On cross-examination, the state may establish through the accused the fact of his prior conviction and the name of the particular felony or misdemeanor of which he has been convicted. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970). Cross-examination on past convictions may modify and supplement direct questions. - Where the state's questions concerning defendant's past criminal conduct pertained to matters inquired of in the direct examination, the cross-examination modified and supplemented the testimony on direct examination and was proper under State v. Wilcoxson, 1948-NMSC-002, 51 N.M. 501, 188 P.2d 611; State v. Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334. Instruction given when prior conviction questions asked is sufficient. - Defendants in a traffic accident suit were not prejudiced by the failure of the trial court to give an instruction concerning proof of a witness's conviction of a crime under former 20-2-3, 1953 Comp. The trial court instructed the jury at the time the questions were propounded and such instruction left the jury correctly informed. Bailey v. Jeffries-Eaves, Inc., 1966-NMSC-094, 76 N.M. 278, 414 P.2d 503. Inability to lay foundation moot when prior conviction subsequently proved. - The error of the district court in sustaining an objection to a question to lay the foundation for impeachment is not available to the appellant when he is later permitted to prove that the witness had been convicted of the crime inquired about. State v. Roybal, 1928-NMSC-055, 33 N.M. 540, 273 P. 919. Where record does not disclose nature of district attorney's information concerning the prior forgery conviction, appellate court does not have sufficient information before it to hold, as a matter of law, that the district attorney acted improperly in asking about "any other" convictions. State v. Biswell, 1971-NMCA-111, 83 N.M. 65, 488 P.2d 115, cert. denied, 83 N.M. 57, 488 P.2d 107. Appellate review of admission of prior conviction. - Where it is contended that the probative nature of a prior conviction was outweighed by its prejudicial impact upon the jury, the appellate question is whether the trial court abused its discretion in permitting a question concerning the prior conviction. Jaramillo v. Fisher Controls Co., 1985-NMCA-008, 102 N.M. 614, 698 P.2d 887. Although defense counsel objected to introduction of prior convictions under this rule, the "specific grounds" stated related to juvenile convictions and stale convictions and as defendant did not assert the inadmissibility of convictions of crimes punishable by imprisonment for less than one year, this issue is raised for the first time on appeal and will not be heard. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. Effect of defendant's preemptive revelation of a prior conviction on appellate review. - The Court of Appeals may consider the admissibility of criminal convictions for impeachment purposes where the defendant, as a tactical matter, elects to preemptively introduce such evidence after having objected to its admissibility and obtaining a ruling from the district court. State v. Allen, 2014-NMCA-047, cert. denied, 2014-NMCERT-002. Where defendant was charged with criminal sexual contact with several minors; in the first prosecution, defendant entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970); the district court accepted the plea, but declined to adjudicate guilt until resolution of the second case; in the second prosecution, the State filed a motion for adjudication of guilt in the first prosecution and indicated that the State would inquire whether defendant was a convicted felon if defendant testified in the second prosecution; defendant objected to the motion; the district court entered an adjudication of guilt against defendant in the first prosecution and ruled that the conviction would be available for impeachment purposes in the second prosecution; and when defendant testified in the second prosecution, defense counsel asked if defendant had been convicted of a felony and defendant admitted defendant's prior felony conviction, by preemptively revealing the prior conviction in the second prosecution, defendant did not waive defendant's right to appeal the district court's adjudication of guilt in the first prosecution as it applied to the second prosecution. State v. Allen, 2014-NMCA-047, cert. denied, 2014-NMCERT-002. No review of discretionary action when proceedings not in transcript. - Where the lower court has ruled that the offense charged was a violation of a city ordinance, and was a mere civil matter and not a misdemeanor, the ruling cannot be reviewed where the ordinance and proceedings are not in the transcript. State v. Knowles, 1927-NMSC-011, 32 N.M. 189, 252 P. 987. B. PROOF OF CONVICTION. Indictment not followed by a corresponding conviction is not a "conviction" within the meaning of this rule. State v. Shoemaker, 1981-NMCA-151, 97 N.M. 253, 638 P.2d 1098. Question of impropriety exists if prosecutor cannot prove conviction. - If a prosecutor inquires concerning a prior conviction and is unable to prove the conviction, a determination as to whether he acted improperly depends on the facts and circumstances. State v. Garcia, 1969-NMCA-039, 80 N.M. 247, 453 P.2d 767. Must offer copies of laws violated. - To impeach a witness because of a prior criminal record, a party must offer the trial judge copies of the statutes or city ordinances which were the bases of the conviction and must offer evidence that the conviction was for an offense punishable by imprisonment for more than one year or involved dishonesty or false statement. State v. Bobbin, 1985-NMCA-089, 103 N.M. 375, 707 P.2d 1185. Prosecutor must go further than "rap sheet" to verify conviction. - Cross-examination of an accused based solely on information contained in an "F.B.I. rap sheet" cannot ordinarily be said to be consistent with the exercise of all reasonable care and the utmost good faith. Generally, the prosecutor has the burden of going further to verify the prior conviction, before he can properly proceed to question the accused concerning the same. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62. Testimony concerning seeing defendant handcuffed not evidence of prior conviction. - Testimony in response to a question propounded to the witness concerning some earlier testimony to the effect that the witness had never seen the defendant handcuffed, without particular reference to either defendant, falls short of being evidence of a prior conviction. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078). Evidence of arrest and payment of costs not proof of conviction. - Witness's testimony that he had been arrested for stealing crossties, and paid the costs of the suit, was properly stricken as not proving conviction. State v. McCabe, 1937-NMSC-043, 41 N.M. 428, 70 P.2d 758. C. PERMISSIBLE. Prior conviction based on Alford plea. - Where defendant was charged with criminal sexual contact with several minors; in the first prosecution, defendant entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970); the district court accepted the plea, but declined to adjudicate guilt until resolution of the second case; in the second prosecution, the State filed a motion for adjudication of guilt in the first prosecution and indicated that the State would inquire whether defendant was a convicted felon if defendant testified in the second prosecution; and the district court entered an adjudication of guilt against defendant in the first prosecution, the district court's adjudication of guilt based on defendant's Alford plea was available to the State as impeachment evidence in the second prosecution. State v. Allen, 2014-NMCA-047, cert. denied, 2014-NMCERT-002. District attorney on cross-examination was entitled to show all prior convictions and the names of the particular offenses. State v. Ocanas, 1956-NMSC-106, 61 N.M. 484, 303 P.2d 390. State may establish name of particular felony or misdemeanor on cross-examination. - On cross-examination the state may establish by the accused the fact of a prior conviction and the name of the particular felony or misdemeanor of which he had been convicted. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62. On cross-examination only the conviction and name thereof can be introduced. - On cross-examination, the state may go no further than to show the conviction of a witness and the name of the particular felony or misdemeanor of which he had been convicted. State v. Ocanas, 1956-NMSC-106, 61 N.M. 484, 303 P.2d 390. Showing conduct probative of truthfulness. - Prosecutor's questioning of defendant on cross-examination regarding his use of an altered driver's license to carry out forgeries for which he had been convicted was proper to show a specific instance of conduct which was probative of his truthfulness. State v. Clark, 1986-NMCA-095, 105 N.M. 10, 727 P.2d 949. Where state did not attempt to prove details of other criminal offenses and all it did was go into the question of whether prior convictions had, in fact, occurred, such questioning was authorized by 20-2-3, 1953 Comp. (now repealed). State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970). Not error to ask whether penitentiary sentence served. - Permitting the defendant, a witness in his own behalf, to be asked on cross-examination whether he had been convicted of a felony and served a term in the penitentiary was not error. State v. Riley, 1936-NMSC-013, 40 N.M. 132, 55 P.2d 743. Testimony from defendant as to prior convictions relates only to his credibility. State v. Archunde, 1978-NMCA-050, 91 N.M. 682, 579 P.2d 808. Evidence of prior robbery conviction admissible in defendant's trial for contributing to the delinquency of a minor. - Where defendant was charged with contributing to the delinquency of a minor (CDM) and shoplifting for assisting a minor child in stealing bottles of alcohol from Wal-Mart, the district court did not abuse its discretion in holding that evidence of defendant's prior robbery conviction was admissible as impeachment evidence, because defendant chose to testify in his defense and his version of the incident conflicted with the version of the State's witnesses, and therefore defendant's credibility was placed at issue, and the probative value for impeachment purposes was not outweighed by its prejudicial effect. State v. Lozoya, 2017-NMCA-052, cert. denied. Shoplifting as crime involving dishonesty. - Violation of a municipal ordinance prohibiting shoplifting comes within the meaning of crime; it is a crime involving dishonesty. State v. Melendrez, 1977-NMCA-131, 91 N.M. 259, 572 P.2d 1267. Cross-examination regarding defendant's "habitual" status. - Prosecutor's improper questioning of defendant on cross-examination regarding defendant's unsolicited reference to his "habitual" status was not so prejudicial as to require a mistrial. State v. Reynolds, 1990-NMCA-122, 111 N.M. 263, 804 P.2d 1082. Cross-examination of defendant concerning prior robbery conviction is proper whether the particular conviction was for a misdemeanor or a felony, as robbery involves dishonesty. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980). Cross-examination as to prior firearm conviction. - In a murder prosecution, the trial court did not abuse its discretion by allowing the state to cross-examine defendant on his prior conviction for possession of a stolen firearm. State v. Mora, 1997-NMSC-060, 124 N.M. 346, 950 P.2d 789. Cross-examination concerning embezzlement, burglary, theft and larceny proper. - Questions concerning embezzlement, burglary, auto theft and larceny involve dishonesty, are probative as to truthfulness and are proper under cross-examination under this rule. State v. Wyman, 1981-NMCA-087, 96 N.M. 558, 632 P.2d 1196. Exhibit admitted to identify defendant to impeach his credibility. - Trial court properly admitted an entire exhibit relating to defendant's prior conviction, including a penitentiary photograph, fingerprints taken at the penitentiary and a copy of the sentence, because the photographs and fingerprints showed that defendant was the person indicted and convicted in order to impeach his credibility. State v. Mills, 1980-NMCA-005, 94 N.M. 17, 606 P.2d 1111, cert. denied, 94 N.M. 628, 614 P.2d 545. Formerly fingerprint evidence from another crime scene was admissible. - Prior to enactment of rules of evidence, evidence of other crimes was admissible if it served to establish the identity of the person charged. Therefore, evidence of defendant's fingerprint at scene of another crime was admissible for impeachment purposes on the issue of identity, since it tended to establish that identity by characteristic conduct. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720. Evidence of collateral offenses not admissible on question of guilt. - The trial court had wide discretion in dealing with counsel's argument, and did not abuse its discretion in overruling defendant's objections to the prosecutor's closing remarks about collateral offenses committed by defendant where the jury was instructed on three occasions - during the cross-examination of the psychologist, the cross-examination of the psychiatrist and upon final submission of the case to them - that references to such collateral offenses and to the fingerprint went only to the credibility of the experts and were not to be considered on the question of guilt. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720. No abuse of discretion in admission of evidence of prior conviction. State v. Trejo, 1991-NMCA-143, 113 N.M. 342, 825 P.2d 1252. In a prosecution of defendant for criminal sexual penetration and abuse of a child by endangerment, the trial court properly ruled that defendant's prior California conviction for lewd acts on a child could be admitted for impeachment purposes. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, cert. denied, 133 N.M. 126, 61 P.3d 835. D. IMPERMISSIBLE. Prejudicial impact of admission into evidence of gun not used in crime being tried outweighed its probative value. Casaus v. State, 1980-NMSC-017, 94 N.M. 58, 607 P.2d 596. Policy is that misdemeanor convictions inadmissible unless deal with veracity. - Defense counsel's objection to the prosecutor's questions as to defendant's misdemeanor convictions on grounds of irrelevancy was sufficiently specific to alert the trial court and the prosecution to the impropriety of the questioning, since it implicitly asserted the policy behind this rule, that is, prior convictions of misdemeanors, not dealing with the veracity of the defendant, simply are irrelevant as to his credibility and thus defense counsel did not waive this error, despite his failure to cite the proper rule. Albertson v. State, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. Policy behind rule is that prior convictions of misdemeanors, not dealing with the veracity of the defendant, simply are irrelevant as to his credibility. State v. Melendrez, 1977-NMCA-131, 91 N.M. 259, 572 P.2d 1267. Evidence admissible under this rule is subject to exclusion by the trial court under Rule 403. State v. Day, 1978-NMCA-018, 91 N.M. 570, 577 P.2d 878. Questions concerning "any unlawful act" impermissible. - In permitting questioning concerning "[a]ny unlawful act," the trial court failed to properly perform its affirmative duty of weighing the legitimate probative value of the cross-examination against the illegitimate tendency to prejudice. State v. Waller, 1969-NMCA-046, 80 N.M. 380, 456 P.2d 213. Prosecutor cannot read criminal statutes to jury to imply criminality. - Even if defendant's evidence showed the undercover agent had committed violations of certain statutes, he was not entitled to read these statutes to the jury as evidence that the agent was a criminal and not to be believed, since the defendant did not establish the witness's conviction of a crime as required by 20-2-3, 1953 Comp. (now repealed). State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972). Admissibility of evidence of defendant's dishonorable discharge when defendant puts in issue. - Evidence of a defendant's dishonorable discharge from military service or of specific discreditable acts of conduct during his military tenure are generally inadmissible in a criminal trial when these matters have not been first elicited or put in issue by the defendant. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040. Cross-examination on multitude of allegations without convictions was error. - Where, on cross-examination, district attorney questioned defendant charged with second-degree murder regarding 33 separate alleged convictions ranging from drunkenness to aggravated assault with no tender of proof of any convictions, and the trial court was alerted to the possible prejudice by pretrial motions, objections during trial, and post-trial motions, it was reversible error for the trial court to fail to exercise its discretion by limiting this testimony. State v. Coca, 1969-NMCA-013, 80 N.M. 95, 451 P.2d 999. Where cross-examination of character witnesses concerning defendant's convictions not allowed. - Cross-examination of character witnesses concerning defendant's convictions 23 years prior to the trial will not be allowed when: (1) the trial judge conducted no in camera inquiry to determine whether the prior alleged events had occurred; (2) none of the witnesses had known the accused for more than six years; (3) the trial court did not instruct the jury at all concerning the limited purpose of the prosecutor's inquiry on the subject; (4) the defendant offered no evidence of specific prior acts, either good or bad, to the jury; and (5) the defense attorney did specifically object to the inquiry made by the prosecutor. State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263. Admission of evidence of prior possession misdemeanors is reversible error. - Where the very essence of defendant's defense hinged upon his credibility, questioning the defendant about his prior misdemeanor convictions for possession of marijuana, which easily conjures notions and prejudices in the mind of a juror, could not be rectified by an admonition to disregard such testimony and was reversible error. Albertson v. State, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. When admission of evidence of defendant's dishonorable military discharge harmless. - The admission of evidence of the defendant's other than honorable discharge from the military service is harmless error where other strong and competent admissible evidence supports the jury verdict. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040. Prejudicial, purposeful misconduct may not create double jeopardy barring retrial. - Where during rebuttal argument, the prosecutor told the jury that he had been accused of withholding evidence, but that counsel for defendant objected to the question about a 1964 conviction and thus succeeded in withholding evidence from the jury, this was prejudicial and purposeful misconduct, but such "purposeful" misconduct did not create a double jeopardy bar to the retrial of the defendant. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980). Ten-year limit. - The court did not abuse its discretion in refusing to admit evidence of a witness' prior convictions, where the convictions were 25 and 29 years old and were not relevant to behavior at the time of the defendant's crime. State v. Litteral, 1990-NMSC-059, 110 N.M. 138, 793 P.2d 268, appeal dismissed, 203 F.3d 835 (10th Cir. 2000). Trial court abused its discretion in admitting evidence of defendant's prior conviction that was nearly ten years old since the case essentially turned on the jury's evaluation of the credibility of the defendant and of the victim. State v. Conn, 1992-NMCA-052, 115 N.M. 101, 847 P.2d 746. III. JUVENILE ADJUDICATIONS. Impeachment. - Where, on direct examination, the defendant denied that he had ever been convicted of a crime, the defendant's prior juvenile adjudication was not admissible to impeach the defendant's testimony on cross-examination. State v. Sena, 2008-NMCA-083, 144 N.M. 271, 186 P.3d 900, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677. No adjudication by juvenile court was admissible under former 20-2-3, 1953 Comp. Martinez v. Avila, 1966-NMSC-107, 76 N.M. 372, 415 P.2d 59. Juvenile court records not admissible even though public records. - Contention that because former 13-8-66, 1953 Comp., made the records of the juvenile court public records, they should have been allowed in evidence to impeach credibility of minor witness was without merit, because even though the records were public records by law, they were not legally admissible. Martinez v. Avila, 1966-NMSC-107, 76 N.M. 372, 415 P.2d 59. Questioning concerning prior juvenile adjudications permitted by Rule 11-608. - Although Paragraph C generally excludes evidence of juvenile adjudications from the permitted questioning concerning prior convictions, this exclusion does not prohibit questioning permitted by Rule 11-608. State v. Wyman, 1981-NMCA-087, 96 N.M. 558, 632 P.2d 1196. Juvenile probation officer's rebuttal testimony prejudicial. - The admission of a juvenile probation officer's rebuttal testimony regarding the officer's opinion of the defendant's reputation for truthfulness is impermissibly prejudicial. State v. Guess, 1982-NMCA-114, 98 N.M. 438, 649 P.2d 506. Evidence of juvenile conviction inadmissible. - In a murder trial where the defendant alleged self-defense in shooting at an occupied vehicle but conceded that he did not know of his assailant's juvenile conviction for armed robbery, the trial court did not abuse its discretion in disallowing introduction of the evidence, especially when it is considered that the defendant fired at the vehicle while it was moving away. State v. Gonzales, 1990-NMSC-051, 110 N.M. 166, 793 P.2d 848. Where the trial court had two opportunities to exclude the evidence, i.e., under Rule 11-403 NMRA as applied to Paragraphs A(2) and D of this rule, and only the crime of concealing identity involved dishonesty of false statement, exclusion was not an abuse of discretion. State v. Lasner, 2000-NMSC-038, 129 N.M. 806, 14 P.3d 1282. IV. PENDENCY OF APPEAL. Evidence of conviction allowed even when conviction being appealed. - Question of defendant "Have you ever been convicted of felony or misdemeanor?" was proper where murder conviction was pending on appeal and where the defendant was not asked which felony. State v. Carlton, 1971-NMCA-019, 82 N.M. 537, 484 P.2d 757, cert. denied, 82 N.M. 534, 484 P.2d 754. Law reviews. - For article, "Impeachment of a Witness's Character in New Mexico," see 2 Nat. Resources J. 575 (1962). For article, "Rape Law: The Need for Reform," see 5 N.M.L. Rev. 279 (1975). For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For article, "Evidence I," see 13 N.M.L. Rev. 407 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 413 et seq.; 81 Am. Jur. 2d Witnesses §§ 910 to 918, 920, 923, 970, 971. Conviction in another jurisdiction as disqualifying witness, 2 A.L.R.2d 579. Admissibility and effect of evidence or comment on party's military service or lack thereof, 9 A.L.R.2d 606. Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses, 20 A.L.R.2d 1217, 88 A.L.R.3d 74. Impeachment of witness by evidence or inquiry as to arrest, accusation or prosecution, 20 A.L.R.2d 1421. Impeachment of witness by showing conviction of contempt, 49 A.L.R.2d 845. Effect of prosecuting attorney asking defense witness other than accused as to prior convictions where he is not prepared to offer documentary proof in event of denial, 3 A.L.R.3d 965. Permissibility of impeaching credibility of witness by showing former conviction, as affected by pendency of appeal from conviction or motion for new trial, 16 A.L.R.3d 726. Use of unrelated traffic offense conviction to impeach general credibility of witness in state civil case, 88 A.L.R.3d 74. Use of unrelated misdemeanor conviction (other than for traffic offense) to impeach general credibility of witness in state civil case, 97 A.L.R.3d 1150. Conviction by court-martial as proper subject of cross-examination for impeachment purposes, 7 A.L.R.4th 468. Cross-examination of character witness for accused with reference to particular acts or crimes - modern state rules, 13 A.L.R.4th 796. Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 A.L.R.4th 227. Right to impeach witness in criminal case by inquiry or evidence as to witness' criminal activity not having resulted in arrest or charge - modern state cases, 24 A.L.R.4th 333. Requirement that defendant in state court testify in order to preserve alleged trial error in rulings on admissibility of prior conviction impeachment evidence under Uniform Rule of Evidence 609, or similar provisions or holding - post-Luce cases, 80 A.L.R.4th 1028. Propriety of using prior conviction for drug dealing to impeach witness in criminal trial, 37 A.L.R.5th 319. What constitutes crime involving "dishonesty or false statement" under Rule 609(a)(2) of the Uniform Rules of Evidence or similar state rule? - general considerations, 82 A.L.R.5th 359. What constitutes crime involving "dishonesty or false statement" under Rule 609(a)(2) of the Uniform Rules of Evidence, 83 A.L.R.5th 277. What constitutes crime involving "Dishonesty or False Statement" under Rule 609(a)(2) of the Uniform Rules of Evidence or similar state rule - nonviolent crimes, 84 A.L.R.5th 487. Construction and application of Rule 609(a) of the Federal Rules of Evidence permitting impeachment of witness by evidence of prior conviction of crime, 39 A.L.R. Fed. 570. Construction and application of Rule 609(c) of the Federal Rules of Evidence, providing that evidence of conviction is not admissible to attack credibility of witness if conviction has been subject of pardon, annulment, or other procedure based on finding of rehabilitation or innocence, 42 A.L.R. Fed. 942. Review on appeal, where accused does not testify, of trial court's preliminary ruling that evidence of prior convictions will be admissible under Rule 609 of the Federal Rules of Evidence if accused does testify, 54 A.L.R. Fed. 694. Construction and application of Rule 609(b) of Federal Rules of Evidence, setting time limit on admissibility of evidence of conviction of crime to attack credibility of witness, 160 A.L.R. Fed. 201. 98 C.J.S. Witnesses §§ 503, 507.