The Gordon 5-prong Test

Gordon v. United States, is the dominant framework used by state and
federal courts interpreting Rule 609(a)(1). 12 In Gordon, then-Judge Burger
sought to “give some assistance to the trial judge to whom we have assigned
the extremely difficult task of weighing and balancing” the probative value
and prejudicial effect of prior convictions offered for impeachment.13 He
noted five factors that should be considered as part of the balancing test:
(1) The impeachment value of the prior crime: “In
common human experience acts of deceit, fraud,
cheating, or stealing, for example, are universally
regarded as conduct which reflects adversely on a
man’s honesty and integrity. Acts of violence on the
other hand, which may result from a short temper, a
combative nature, extreme provocation, or other
9 See MCCORMICK ON EVIDENCE, supra note 6, § 42, at 187 (“The Federal Rule
governing impeachment by proof of conviction of crime is the product of compromise.”).
10 Under Federal Rule 609(a)(2), “evidence that any witness has been convicted
of a crime shall be admitted regardless of the punishment, 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.”
11 FED. R. Evm. 609(a)(1).
12 Gordon v. United States, 383 F.2d 936, 939-41 (D.C. Cir. 1967). Gordon relied
heavily on the D.C. Circuit’s previous ruling in Luck v. United States, 348 F.2d 763, 768
(D.C. Cir. 1965). For that reason, the test is sometimes referred to as the “Luck-Gordon” test.
13 Gordon, 383 F.2d at 941. For a helpful overview of the Gordon test, see
Rodeick Surratt, Prior-Conviction Impeachment Under the Federal Rules of Evidence: A
Suggested Approach to Applying the “Balancing” Provision of Rule 609(a), 31 SYRACUSE L.
REV. 907,942-949 (1980).
[Vol. 31:2
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RULE 609
causes, generally have little or no direct bearing on
honesty and veracity.”‘ 4
(2) The staleness of the prior conviction: ‘The nearness
or remoteness of the prior conviction is also a factor
of no small importance. Even one involving fraud or
stealing, for example, if it occurred long before and
has been followed by a legally blameless life, should
generally be excluded on the ground of
remoteness. 15
(3) The similarity between the past crime and the
charged crime: “[S]trong reasons arise for excluding
those which are for the same crime because of the
inevitable pressure on lay jurors to believe that ‘if he
did it before he probably did so this time.’ As a
general guide, those convictions which are for the
same crime should be admitted sparingly …. ,,16
(4) The importance of defendant’s testimony: “One
important consideration is what the effect will be if
the defendant does not testify out of fear of being
prejudiced because of impeachment by prior
convictions. Even though a judge might find that the
prior convictions are relevant to credibility and the
risk of prejudice to the defendant does not warrant
their exclusion, he may nevertheless conclude that it
is more important that the jury have the benefit of
the defendant’s version of the case than to have the
defendant remain silent out of fear of
impeachment.”
7
(5) The centrality of the credibility issue: “[B]ecause the
case had narrowed to the credibility of two persons –
the accused and his accuser – and in those
circumstances there was greater, not less,
compelling reason for exploring all avenues which
would shed light on which of the two witnesses was
to be believed.”‘ 8
When Congress drafted Rule 609, its discretionary balancing
approach was based largely on the approach developed by the D.C. Circuit in
cases like Gordon.9 In part for that reason, the Gordon test has remained
14 Gordon, 383 F.2d at 940.
15 Id.
16 id.
17 Id. at 940-41.
18 Id. at 941.
19 See United States v. Smith, 551 F.2d 348, 361 (D.C. Cir. 1976); United States
v. Jackson, 405 F. Supp. 938, 941-42 (E.D.N.Y. 1975) (Weinstein, J.); Dodson, supra note 8,
2008]
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410 HAMLINE LA W REVIEW [Vol. 31:2
influential in post-Rules jurisprudence. 20 The Gordon test continues to
operate as an interpretive gloss on the probativeness-prejudice balancing test
mandated by 609(a)(1). 2
1 Many American jurisdictions use the five-factor
Gordon test to assess prior convictions offered under 609(a)(1). 22 Others use
similar multi-factor tests with slight variations. 23 At one point, the Advisory
Committee on the Federal Rules considered amending Rule 609 to
incorporate a multi-factor test based on Gordon but declined to do so “on the
ground that it simply codified what Courts were generally doing under the
Rule already.” 24

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