Evidence of a prior conviction is a general attack on the credibility of a witness. Douglas v. State, A14A0649. The introduction of evidence of a witness' prior felony conviction is intended to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy person to be truthful in his testimony. Hines v. State, 249 Ga. 257 (1982). A witness cannot be impeached by instances of specific misconduct unless that misconduct has resulted in the conviction of a crime. Luckie v. State, 310 Ga. App. 859 (2011); McClure v. State, 278 Ga. 411 (2004).
Evidence of a witness' prior conviction must be tendered and admitted in the form of a certified copy of the conviction and not by testimony alone. Hudson
v. State, 325 Ga. App. 810 (2014).
To use a conviction that is more than ten years old, the party seeking to introduce evidence of a witness' prior convictions must give the other side sufficient advance written notice of the intent to use such evidence so that the other side has a fair opportunity to contest the use of the evidence. O.C.G.A. § 24-6-609. Further, the evidence of a conviction more than ten years old is not admissible unless the judge finds that the probative value of the evidence substantially outweighs prejudicial effect. Under current law, witnesses can be impeached by evidence of a prior conviction less than ten years old as long as "the probative value of admitting the evidence outweighs its prejudicial effect to the witness.” O.C.G.A. § 24984.1 (a) (1); O.C.G.A. § 24-6-609 (evidence admissible unless prejudice substantially outweighs probative value). The end date of the ten-year period is the date the witness testifies or the evidence of the prior conviction is introduced. Clay v. State, 290 Ga. 822 (2012).
The judge is required to make express findings when balancing the probative value and the prejudicial effect of the evidence. Lawrence v. State, 305 Ga. App. 199 (2010). "Factors to be considered include the kind of felony involved, the date of the conviction, and the importance of the witness' credibility." Quiroz v. State, 291 Ga. App. 423 (2008); Johnson v. State, 307 Ga. App. 791 (2011).
When a party seeks to impeach a witness with a prior conviction, the specific facts underlying the crime are irrelevant unless the witness attempts to rehabilitate himself by explaining the circumstances of his conviction. Brown v. State, 276 Ga. 192 (2003); Love v. State, 302 Ga. App. 106 (2010). A
party cannot add to his impeachment of a witness with facts underlying the witness' prior convictions unless the witness has attempted to rehabilitate his character, by for example, denying he really committed the crime. Robinson v. State, 246 Ga. App. 576 (2000). Further, proof of the conviction is admissible but not the indictment under which the conviction was entered or the sentence. An indictment represents only accusations against a person, and is not in itself a conviction. Carter v. State, 289 Ga. 51 (2011). The better practice is to redact the evidence pertaining to the sentence. Miller v. State, 250 Ga. App. 84 (2001).
A witness cannot be impeached based on a prior conviction by evidence of a first offender sentence. Sanders v. State, 290 Ga. 445 (2012); Battles v. State, 290 Ga. 226 (2011). The first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender based on a prior conviction. Jackson v. State, A12A0654; Christopher v. State, 314 Ga. App. 809 (2012); Davis v. State, 312 Ga. App. 328 (2011).
However, the witness can be impeached with a first offender record by showing that the pending charges reveal a potential bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in order to please the State while the witness was still on probation under that plea. Manley v. State, 287 Ga. 338 (2010); Strong v. State, 308 Ga. App. 558 (2011).
Evidence that a witness has been convicted of a crime shall be admissible if the crime involved dishonesty or making a false statement. Moral turpitude is no longer the standard in assessing whether convictions can be used for impeachment. Green v. State, 291 Ga. 287 (2012). Under O.C.G.A. § 24-9-84.1 (a) (3), evidence that a witness has been convicted of a misdemeanor crime is admissible for purposes of impeachment if the crime involved dishonesty or making a false statement. O.C.G.A. § 24-6-609(a)(2). Crimes involving dishonesty or false statement that fall under the statute are limited to "crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully." Clements v. State, 299 Ga. App. 561 (2009). Generally, theft is not a crime that necessarily involves dishonesty or making a false statement of the sort contemplated by the law. McClain v. State, 301 Ga. App. 844 (2010); Jacobs v. State, 299 Ga. App. 368 (2009). Thus, the party seeking to use a misdemeanor theft conviction as impeachment evidence must show that the conviction involved fraud or deceit. Boatright v. State, 308 Ga. App. 266 (2011). O.C.G.A. § 24-6-609 (d). (conviction based upon nolo plea not admissible for impeachment; juvenile adjudications not admissible against defendant but may be admissible against witness).