Every so often the comes up of impeachment by prior conviction under Mil. R. Evid. 609. The reminder is that:
The fact of a pending appeal does not defeat admission, but it may be brought up and discussed. Mil. R. Evid. 609(e).
A summary court-martial may not be used to impeach under this rule. There may be other ways to impeach with conduct subject to discipline at a summary court-martial, but not Mil. R. Evid. 609. (Further evidence that an SCM is not considered a “conviction?”)
Here is another reminder:
Fourth Circuit vacated and remanded a conviction based on the ineffective assistance of defense counsel who failed to effectively challenge admission of defendant’s prior convictions for purposes of impeaching his credibility as a witness because the convictions had been reversed. United States v. Russell, 221 F.3d 615 (4th Cir. 2000) (No. 99-4117).
Under FRE 609(e), for purposes of attacking a witness’s character for truthfulness, the “pendency of an appeal” from a defendant’s conviction “does not render evidence of a conviction inadmissible.” How does this rule operate once the appeal is decided? The Fourth Circuit examined this problem and decided that “[a]lthough the pendency of an appeal does not preclude use of such a conviction for impeachment purposes … it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused.” Russell, 221 F.3d at 620 n.6.