               IN THE SUPREME COURT OF IOWA
                               No. 10–0431

                         Filed September 9, 2011


STATE OF IOWA,

      Appellee,

vs.

RAYMOND CARL REDMOND,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Joseph Moothart, Judge.



      Appellant claims district court abused its discretion by admitting

his prior harassment conviction for impeachment purposes under Iowa

Rule of Evidence 5.609(a)(1).     DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED FOR NEW TRIAL.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Dustin S.

Lies, Assistant County Attorney, for appellee.
                                          2

ZAGER, Justice.

       Raymond Redmond asserts the district court erred in allowing the

State to impeach Redmond with his prior first-degree harassment

conviction under Iowa Rule of Evidence 5.609(a)(1). The court of appeals

affirmed the district court’s evidentiary ruling.          On further review, we

find the district court abused its discretion by allowing the State to

impeach Redmond with his prior conviction as the prior conviction’s

probative value did not outweigh its prejudicial effect to Redmond. The

error was not harmless. 1       Accordingly, we vacate the court of appeals

decision, reverse the district court judgment, and remand the case for a

new trial.

       I. Background Information.

       A. Facts and Proceedings. Raymond Redmond was charged by

trial information with indecent exposure, a serious misdemeanor, in

violation of Iowa Code section 709.9 (2009). On October 13, 2009, P.M.

reported to police Redmond exposed himself to her earlier that evening.

The matter proceeded to a jury trial.

       At trial, Officer Albers of the Waterloo Police Department testified

he received an early-evening call about a disturbance at the University

Black Hawk Motel, and upon arrival, he found Redmond in a dispute

unrelated to P.M.’s allegations. Albers promptly diffused the dispute. In

light of Redmond’s heavy intoxication, Albers instructed Redmond “[t]o go

back in to his room, stay there and don’t come out the rest of the

evening.”    Albers testified Redmond was so intoxicated it appeared he

was “gettin’ real close to” passing out.



       1Because we find Redmond is entitled to a new trial for evidentiary reasons, we
need not examine Redmond’s alternative error claims.
                                    3

      P.M. testified she was shopping with her teenage son that evening,

but the two had an argument as they returned to their apartment at the

University Black Hawk Motel.        P.M. had befriended her neighbor

Redmond and his roommates, Ben and Maria. After letting her son into

their apartment, she testified she went down to Redmond’s apartment.

P.M. frequently stopped by to see her three friends. P.M. said Redmond

let her in, and she asked Redmond where Ben and Maria were.

Redmond responded he did not care where his roommates were and

appeared distraught and intoxicated to P.M. She testified Redmond then

stood up and asked her if she wanted to see his penis. She testified,

“[J]ust like that it was there in front of me.”       Redmond allegedly

approached to within a foot and a half of where P.M. was sitting with his

erect penis exposed. P.M. stated she repeatedly told Redmond “to put it

away, it wasn’t right.” P.M. testified her son interrupted the incident by

knocking on the door, which allowed her to leave the apartment.

      On cross-examination, P.M. acknowledged she has been diagnosed

with “bipolar two” and is prescribed medications. P.M. stated she had

not taken her daily medication at the time the incident occurred.

      Officer Albers returned to the University Black Hawk Motel in

response to P.M.’s call. She told Albers she went to visit Redmond and

his roommates, and Redmond exposed himself to her. Albers noted P.M.

was confused about whether to file charges, but she was coherent and

sober. Albers testified he did not talk with Redmond after P.M.’s report

because Redmond did not answer his door when Albers knocked. Albers

stated later in the evening Officer Wittmayer took Redmond into custody.

      Redmond’s testimony was brief. He testified Officer Albers came to

his house early in the evening to resolve a dispute unrelated to P.M.

Redmond testified he passed out after Albers left. Redmond next recalled
                                    4

being awakened to Officer Wittmayer banging on his door to take him

into custody in connection with P.M.’s report. Redmond claimed he did

not see P.M. on the evening of October 13.

      On cross-examination, Redmond admitted he was very intoxicated

on the night of October 13.     Redmond reiterated he passed out that

evening and awoke to the police banging on his door.            The State

questioned Redmond about his prior first-degree harassment conviction:

           Q. You’ve previously been convicted of First Degree
      Harassment; is that correct?

            [DEFENSE      COUNSEL]:     Objection,   Your    Honor,
      previously urged.

            THE COURT: Okay.          I’ll note the objection; it’s
      overruled for reasons previously indicated . . . .

           A. Yeah, I have been charged with First Degree
      Harassment.

            Q. Okay. But it’s not that you’ve been charged, you
      were convicted on August 21 of 2009; were you not? A. Yes,
      I was convicted of it, I guess, ‘cause I went to court for it.

           Q. Okay. And that was on August 21, 2009; correct?
      A. Uh-huh.

      At the time Redmond was cross-examined, the district court did

not instruct the jury to restrict the use of Redmond’s harassment

conviction to assessing his testimonial credibility.        Before closing

arguments, the district court read a jury instruction stating the jury may

consider Redmond’s conviction “only to help decide whether to believe

the defendant and how much weight to give his testimony.”

      During closing argument, the county attorney again revisited

Redmond’s prior harassment conviction.       While instructing the jury it

had a duty to determine who was telling the truth between Redmond and

P.M., the county attorney stated:
                                     5
      The defendant admitted on the stand that he has been
      convicted of First Degree Harassment as recent as August of
      2009. Okay? He told very little of the story . . . . Ask
      yourself is that the person you’re going to believe?

      The jury convicted Redmond of indecent exposure.           He was

sentenced to jail for 365 days. Redmond’s jail sentence was suspended

except for 119 days, and Redmond received credit for 119 days
previously served.   Redmond was ordered to pay a fine and received

supervised probation for two years. The district court imposed a ten-year

special sentence of parole and required Redmond to register as a sex

offender.

      Redmond filed a timely notice of appeal. The case was transferred

to the court of appeals.       The court of appeals affirmed Redmond’s

conviction finding the district court did not abuse its discretion in

admitting   Redmond’s      first-degree   harassment     conviction     for

impeachment purposes. The court of appeals also preserved Redmond’s

ineffective-assistance-of-counsel claim for postconviction relief.      We

granted Redmond’s petition for further review.

      B. District    Court’s   Decision   to   Admit   Redmond’s      Prior

Conviction. After the State presented its case, it informed the court of

its intention to impeach Redmond with his prior first-degree harassment

conviction in the event he testified. Redmond’s counsel remarked he did

not know the facts of the prior conviction, but he was likely to object.

The court did not rule on the issue at this time and waited to make a

ruling until Redmond testified and the record was further developed.

      After Redmond’s direct examination, the court conducted another

colloquy. The State informed the court Redmond’s prior conviction was

for first-degree harassment, the conviction was on August 21, 2009, and

Redmond’s jail sentence concluded in September of 2009.        The State
                                     6

provided the court no other details, and the court did not request

additional information.

      The court properly determined Iowa Rule of Evidence 5.609(a)(1)

governed this evidentiary dispute and recited the rule’s balancing test.

The State advocated for the conviction’s probative value:
      I think the fact that the defendant has just recently been
      convicted of Harassment in the First Degree, I believe while
      intoxicated as well, goes to establish that this type of
      behavior—that the defendant’s impeachment on this offense
      is proper . . . .
      ....
      I think it’s clear that the defendant acts in an aggressive and
      sometimes obviously violent or threatening manner when
      intoxicated given that previous conviction. . . . I was just
      going to raise it for the purpose of letting the jury know or
      making the jury aware that it exists.

Thus, the State essentially argued the conviction is probative for its

propensity inference: the fact finder will assume Redmond behaved

toward P.M. in conformity with his prior actions.

      Redmond objected to the conviction’s admissibility stating the

conviction would cause him “extreme prejudice.” He did not specifically

articulate the prejudice, but it is clear he is referring to a fear the jury

will assume his guilt based upon a similar prior conviction.
      After hearing the parties’ oral arguments, the court ruled, “Under

these circumstances, in my opinion, the probative value of admitting the

evidence of the prior conviction . . . outweighs the prejudicial effect [to]

the accused . . . .”       The court did not make any case-specific

considerations or findings on the record.

      II. Standard of Review.

      We review rulings on the admission of prior crimes evidence for an

abuse of discretion. State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008).

An abuse of discretion occurs when the trial court exercises its discretion
                                             7

“on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.”        Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa

1997)) (internal quotation marks omitted).                  “A ground or reason is

untenable when it is not supported by substantial evidence or when it is

based on an erroneous application of the law.” Graber v. City of Ankeny,

616 N.W.2d 633, 638 (Iowa 2000).

       III. Issues.

       Redmond claims the district court abused its discretion in two

respects. First, Redmond asserts the district court abused its discretion

when it failed to make a record of explicit findings in employing the rule

5.609(a)(1) probative-versus-prejudice balancing test. Second, Redmond

claims the district court abused its discretion in concluding the probative

value of his harassment conviction outweighs its prejudicial effect.

       IV. District Court Did Not Abuse Its Discretion by Failing to

Make On-The-Record Findings.

       This court has never required the district court to make explicit

findings as to a prior conviction’s admissibility for impeachment

purposes. In considering whether explicit findings were required under

rule 5.609(b) 2 we noted “it would be [the] better practice for the trial

court to make on-the-record findings as to the specific facts and

circumstances which demonstrate the probative value of the conviction

substantially outweighs its prejudicial effect.”               State v. Hackney, 397

N.W.2d 723, 728 (Iowa 1986). Similarly, in State v. Daly, 623 N.W.2d


       2The  textual language of Iowa Rule of Evidence 5.609(b) provides support for an
on-the-record requirement as it states “a conviction . . . is not admissible . . . unless the
court determines . . . the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect.” (Emphasis added.)
Iowa Rule of Evidence 5.609(a)(1) does not contain any reference to “specific facts and
circumstances” in its text. This opinion does not purport to make any determinations
with respect to an on-the-record-findings requirement under rule 5.609(b).
                                     8

799, 802–03 (Iowa 2001), we declined to hold the district court abused

its discretion simply because it failed to make a record of its balancing

considerations. Instead, in Daly we independently examined the district

court’s admissibility decision and concluded the district court’s decision

to admit the prior conviction, not its failure to make explicit findings, was

an abuse of discretion.    Daly, 623 N.W.2d at 802–03.       We have held,

however, that when a district court makes explicit on-the-record findings

as to probative value, prejudicial effect, and individual circumstances,

the district court often creates a persuasive record that it properly

exercised its discretion. See State v. Axiotis, 569 N.W.2d 813, 816 (Iowa

1997), overruled on other grounds by State v. Harrington, 800 N.W.2d 46,

47 (Iowa 2011).

      Federal courts generally follow a similar approach.       The United

States Court of Appeals for the Seventh Circuit, in one of the more cited

passages on this issue, instructed the district court:

            In the future, to avoid the unnecessary raising of the
      issue of whether the judge has meaningfully invoked his
      discretion under Rule 609, we urge trial judges to make such
      determinations after a hearing on the record, as the trial
      judge did in the instant case, and to explicitly find that the
      prejudicial effect of the evidence to the defendant will be
      outweighed by its probative value. When such a hearing on
      the record is held and such an explicit finding is made, the
      appellate court easily will be able to determine whether the
      judge followed the strictures of Rule 609 in reaching his
      decision.

            The hearing need not be extensive. Bearing in mind
      that Rule 609 places the burden of proof on the government,
      the judge should require a brief recital by the government of
      the circumstances surrounding the admission of the
      evidence, and a statement of the date, nature and place of
      the conviction. The defendant should be permitted to rebut
      the government’s presentation, pointing out to the court the
      possible prejudicial effect to the defendant if the evidence is
      admitted.
                                        9

United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976) (citations

omitted); see also United States v. Sides, 944 F.2d 1554, 1561 (10th Cir.

1991) (“[T]his circuit has not adopted a requirement that trial courts

make    explicit    findings   in   determining   the   admissibility   of   prior

convictions. While explicit findings enable the appellate court to ensure

the proper application of Rule 609, explicit findings are not ‘an absolute

requirement the nonperformance of which mandates reversal.’ ” (citation

omitted) (quoting United States v. Jackson, 627 F.2d 1198, 1208–09 (D.C.

Cir. 1980))).

       The district court should undertake to make explicit findings

concerning the balancing test articulated in rule 5.609(a)(1).                See

Hackney, 397 N.W.2d at 728.           Such findings guide courts in making

principled admissibility determinations in accord with the language of

rule 5.609(a)(1).       Explicit findings also provide appellate courts

assurance the district court properly exercised its discretion.          Absent

such findings, it may be difficult for the appellate courts to determine if

the district court properly utilized its discretion or applied the proper

framework.      The absence of explicit findings, however, is not a per se

abuse of discretion. See Daly, 623 N.W.2d at 802–03. Instead, appellate

courts are then required to perform their own de novo review to

determine whether the district court invoked any meaningful discretion

and whether the record supports the district court’s decision to admit the

prior conviction.

       Here, the district court held an on-the-record hearing to determine

the admissibility of Redmond’s prior conviction.            The district court

properly noted rule 5.609(a)(1) governed the conviction’s admissibility

and allowed both parties to present argument as to admissibility. The

district court did not make explicit findings as to probative value or
                                     10

prejudicial effect.     Absent these findings, we proceed de novo to

determine whether the district court abused its discretion in admitting

Redmond’s prior first-degree harassment conviction.

      V. Admissibility Under Rule 5.609(a)(1).

      Iowa Rule of Evidence 5.609 states:

            a. General rule.      For the purpose of attacking the
      credibility of a witness:

            (1) Evidence that a witness other than the accused has
      been convicted of a crime shall be admitted, subject to rule
      5.403, if the crime was punishable by death or imprisonment
      in excess of one year pursuant to the law under which the
      witness was convicted, and evidence that an accused has
      been convicted of such a crime shall be admitted if the court
      determines that the probative value of admitting this
      evidence outweighs its prejudicial effect to the accused; and

            (2) Evidence that any witness has been convicted of a
      crime shall be admitted if it involved dishonesty or false
      statement, regardless of the punishment.

Rule 5.609(b) restricts admissibility of prior convictions more than ten

years from the date of the conviction or release of the witness from

confinement unless the “the probative value of the conviction supported
by   specific   facts   and   circumstances    substantially   outweighs   its

prejudicial effect.” Iowa R. Evid. 5.609(b).

      A. History of Prior Conviction Admissibility.            The traditional

rationale for admitting prior convictions rests on the assumption prior

convictions undermine a witness’s credibility because a person who

commits a crime is more likely to lie than a law-abiding citizen.          See

Parker, 747 N.W.2d at 206 (observing this traditional policy rationale). In

1974, this court reexamined the admissibility of prior convictions against

a defendant–witness and modified the traditional per se acceptance of

prior conviction evidence. State v. Martin, 217 N.W.2d 536, 540–43 (Iowa

1974). We framed the issue as whether the State could cross-examine
                                     11

the defendant about “prior felony convictions unrelated to truth and

veracity.”    Id. at 538.     We concluded “relatively unlimited cross-

examination of a witness as to prior felony convictions, more particularly

an accused, is fraught with inequities.” Id. at 541.

      This court cited to Gordon v. United States, 383 F.2d 936 (D.C. Cir.

1967), which was drafted by Chief Justice Warren Burger, then a circuit

court of appeals judge, for guidance in establishing admissibility

standards. Id. at 540–42. First, we directed courts to look to the nature

of the impeachment, as the impeachment should not “show that the

accused . . . is a ‘bad’ person but rather . . . show background facts

which bear directly on whether jurors ought to believe him.” Id. at 540

(quoting Gordon, 383 F.2d 940) (internal quotation marks omitted).

Second, we directed courts to consider the “remoteness in time” of the

conviction, as dated convictions may have less bearing on witness truth

and veracity.   Id. at 541.   We also noted prior convictions “based on

conduct the same or substantially similar to [the current charge]

militates against admissibility of the prior [conviction] because it

enhances the danger of unfair prejudice.” Id. at 543 (quoting People v.

Delgado, 108 Cal. Rptr. 399, 404–05 (Ct. App. 1973), overruled on other

grounds by People v. Rist, 545 P.2d 833, 840 (Cal. 1976)). This court

summarized:

      [F]or the purpose of attacking credibility of any witness,
      including an accused . . . , evidence that he has been
      previously convicted of a felony is admissible only if (1) the
      felony involved dishonesty or false statement, and (2) the
      judge determines any danger of unfair prejudice does not
      substantially outweigh the probative value of such prior
      felony conviction, taking into account factors such as
      (a) nature of the conviction, (b) its bearing on veracity, (c) its
      age, and (d) its propensity to improperly influence the minds
      of the jurors.

Id. at 542.
                                     12

      Martin created this state’s framework for admissibility of prior

convictions against the accused. Martin’s four factors still guide the legal

landscape in this area of law.     See, e.g., Daly, 623 N.W.2d at 802–03

(citing Martin’s factors as controlling); Axiotis, 569 N.W.2d at 816 (same);

Hackney, 397 N.W.2d at 726–27 (Iowa 1986) (same).

      But Martin and Gordon both predated the adoption of specific

evidentiary rules governing the impeachment use of prior convictions.

Federal Rule of Evidence 609 was adopted in 1974. In 1983, this state

adopted Iowa Rule of Evidence 5.609 which was patterned after the

Federal Rule. As the Martin court observed, “The effect of prior felony

convictions upon testimonial rights [was] a matter of concern to both

courts and legal scholars,” and the rules of evidence were created in

culmination of these long-standing concerns.        Martin, 217 N.W.2d at

538. The rules of evidence sought to replace fragmented case law on the

issue and provide definite guidance as to the admissibility of prior

convictions.   The legislative history of the Federal Rule is substantial,

and the rule was the byproduct of a heated ideological congressional

debate. See Victor Gold, Impeachment by Conviction Evidence: Judicial

Discretion and the Politics of Rule 609, 15 Cardozo L. Rev. 2295, 2298–

2321 (1994) [hereinafter Gold] (providing a detailed summary of Rule

609’s legislative history). The tension resided between society’s interest

in convicting the guilty and providing the accused a fair trial.       Id. at

2310. Federal Rule of Evidence “609(a) embodies a series of calculated

risks that admission of prior convictions evidence will lead to the

acquittal of the guilty or the conviction of the innocent.” Id. at 2321.

      As a result of this congressional struggle, one commentator

quipped, “The text of Rule 609[] incorpor[ates] no less than three

balancing tests, two references to fairness, one to justice, and several
                                      13

other undefined terms . . . .” Id. at 2296. Iowa Rule of Evidence 5.609,

patterned after the Federal Rule, contains a similar set of compromises.

Rule 5.609 distinguishes between the testimonial rights of the accused

and other witnesses, between crimes of dishonesty or false statement

and other crimes, and between convictions not within ten years and

those more recent.        Iowa R. Evid. 5.609.           Depending on such

classifications, different admissibility tests are required.

      Rule 5.609(a) and Martin embrace many of the same principles.

But the discrete framework of rule 5.609 and Martin’s more generic

analysis   have   tenuously    coincided,   at   times    causing   precedent

inconsistent with the rule’s language. See, e.g., Harrington, 800 N.W.2d

at 47, 50–51 (overruling case law that applied Martin’s four factors to

crimes that come within rule 5.609(a)(2) as this rule provides the district

court no balancing discretion). For example, Martin’s factors direct the

court to determine the prior conviction’s bearing on veracity, but rule

5.609(a)(2) provides a special rule of admissibility for convictions

involving dishonesty or false statement. Id. at 50. How Martin’s generic

factors interplay with the rule’s specific contours is unclear.

      Federal courts have developed a body of case law tied to the

language and approach articulated in Federal Rule of Evidence 609. See

Tome v. United States, 513 U.S. 150, 160–61, 115 S. Ct. 696, 702–03,

130 L. Ed. 2d 574, 584 (1995) (noting the Federal Rules of Evidence often

adhere to common law, but “[w]here the Rules did depart from their

common-law antecedents, in general the Committee said so”).              The

principles articulated in Gordon and other pre-Rule 609 cases serve as

valuable guidance, but the framework is not controlling in federal courts.

Our jurisprudence must move past Martin’s framework and embrace the

comprehensive approach instructed by Iowa Rule of Evidence 5.609.
                                            14

See, e.g., Harrington, 800 N.W.2d at 48–51 (distinguishing admissibility

rules between convictions within rule 5.609(a)(1) and (2) in accord with

the rule’s text).      This case presents an opportunity to examine rule

5.609(a)(1)’s policies and framework for admitting prior conviction

evidence against the accused. 3

       B. Framework          for        Admitting     Convictions       Under      Rule

5.609(a)(1).       Iowa Rule of Evidence 5.609(a)(1) applies to a witness’s

prior convictions that: (1) are punishable by death or imprisonment in

excess of one year, (2) do not involve dishonesty or false statement

(governed by rule 5.609(a)(2)), and (3) are within ten years (governed by

rule 5.609(b)).      Rule 5.609(a)(1) distinguishes between a defendant–

witness’s prior convictions and an ordinary witness’s prior convictions.

United States v. Tse, 375 F.3d 148, 160, 164 (1st Cir. 2004) (“With

respect to the use of prior convictions for impeachment, Rule 609

distinguishes between the accused and mere witnesses.”); 4 Jack B.

Weinstein      &    Margaret       A.    Berger,    Weinstein’s   Federal     Evidence

§ 609.05[3][a], at 609–36 (Joseph M. McLaughlin ed., 2d ed. 2011)

[hereinafter Weinstein] (“Rule 609(a) distinguishes between the accused

and other witnesses when prior convictions are used for impeachment.”).

If the witness is not the defendant, the prior conviction “shall be

admitted” unless excluded under rule 5.403 because the conviction’s

“probative value is substantially outweighed by the danger of unfair

prejudice.”        Iowa Rs. Evid. 5.403, 5.609(a)(1); accord Weinstein,

§ 609.05[2], at 609–33. Rule 5.609(a)(1) therefore operates as a rule of

admission as to an ordinary witness’s prior felony convictions.                   If the


       3All  parties agree Redmond’s harassment conviction falls within rule 5.609(a)(1)
as it is not a conviction that involves “dishonesty or false statement” which is governed
by rule 5.609(a)(2).
                                        15

State seeks to impeach the defendant with a prior conviction, however,

the conviction is only admissible “if the court determines that the

probative value of admitting this evidence outweighs its prejudicial effect

to   the   accused.”     Iowa    R.   Evid.   5.609(a)(1);   accord   Weinstein,

§ 609.05[3][a], at 609–36. Rule 5.609(a)(1) acts as a rule of exclusion as

to the defendant–witness’s prior convictions.          The defendant–witness

provision is implicated in this case.

      The salient feature of rule 5.609(a)(1) is the distinction between

defendants and witnesses. See Weinstein § 609.05[3][a], at 609–36 (“[A]

criminal defendant’s prior convictions may be excluded in situations that

would not justify exclusion concerning other witnesses.”). Only when the

prior conviction’s probative value outweighs its prejudicial effect to the

accused is the defendant’s prior conviction admissible for impeachment

purposes. Iowa R. Evid. 5.609(a)(1). The prosecution must carry this

burden to admit a prior conviction against the accused. See, e.g., United

States v. Rivers, 693 F.2d 52, 54 n.3 (8th Cir. 1982) (noting “the

government’s burden at trial to establish the admissibility of prior

convictions under Rule 609(a)”); United States v. Kiendra, 663 F.2d 349,

353 n.1 (1st Cir. 1981) (“Rule 609(a)(1) actually goes so far as to put the

burden on the government to show that probative value outweighs

prejudice.”).     The rule requires the court to determine both the

conviction’s “probative value” and the conviction’s “prejudicial effect,” but

it does not define the meaning of either concept. The court must use its

discretion   to   make   these   findings.      An   appellate   court   cannot

hypothecate the countless individual circumstances that may influence a

conviction’s probative value or prejudicial effect, but it can provide

guidance to the content of these terms.
                                     16

      1. Probative Value. To ascertain “probative value,” the court must

identify what the prior conviction must tend to prove.          See Alan D.

Hornstein, Between Rock and a Hard Place: The Right to Testify and

Impeachment by Prior Conviction, 42 Vill. L. Rev. 1, 9 (1997) (noting many

evidentiary challenges focus on prejudice, but sophisticated approaches

also take into account probative value towards credibility). Rule 5.609(a)

states the prior conviction is “[f]or the purpose of attacking the credibility

of a witness.”     A prior conviction’s probative value then must be

measured by the degree it undermines the defendant’s testimonial

credibility; stated inversely, probative value is the extent to which

exclusion of the prior conviction evidence inhibits the jury from

accurately assessing the defendant’s testimonial credibility.        Counsel

may attempt to show a witness’s testimony is unpersuasive in a number

of ways, such as showing bias, motive to lie, or flaws in perception. Prior

conviction evidence is simply another tool in the attorney’s belt.

      Rule 5.609(a)(1) contemplates all convictions falling within its

scope undermine testimonial credibility to some degree. This conclusion

flows from the structure of rule 5.609. See United States v. Lipscomb,

702 F.2d 1049, 1058 (D.C. Cir. 1983) (concluding the language of

Federal Rule of Evidence 609 implies “all felony convictions were

somewhat probative of credibility”).       Rule 5.609(a)(1) mandates the

defendant–witness’s conviction “shall be admitted if the court determines

the probative value . . . outweighs its prejudicial effect.”         The rule

requires the court to consider “the probative value” which implies all

prior convictions within the scope of rule 5.609(a)(1) meet some

minimum degree of probative value. This inference is supported by other

classifications made in rule 5.609. For example, rule 5.609(a)(1) applies

only to convictions with potential sentences in excess of one year, which
                                     17

implies not all convictions meet the threshold degree of probative value

required for rule 5.609(a)(1) to apply. Thus, convictions that come within

rule 5.609(a)(1) meet the minimum probative threshold to be admitted,

dependent on their prejudicial effect.

      The corollary of the inference that all prior convictions within rule

5.609(a)(1) have some probative value is the inference prior convictions

all carry different degrees of probative value.       See United States v.

Estrada, 430 F.3d 606, 619 (2d Cir. 2005) (“[T]he gradations among Rule

609(a)(1) crimes, in terms of their bearing on truthfulness, . . . lie at the

heart of the . . . analysis . . . under Rule 609(a)(1).”); accord Weinstein,

§ 609.05[3][b], at 609–39 (“Although Rule 609(a)(1) addresses convictions

for crimes that do not involve . . . dishonesty or false statement, some

felonies are more related to veracity than are others.”).       The special

distinctions made in rule 5.609(a)(1) demonstrate that prior convictions

do not uniformly bear on a suspect’s testimonial truthfulness.          Rule

5.609(a)(2), for example, concludes crimes of dishonesty or false

statement are so probative towards a witness’s testimonial credibility

that the district court should not have balancing discretion under rule

5.609(a) to exclude the convictions. See Harrington, 800 N.W.2d 46, 50

(Iowa 2011) (“[P]rior convictions involving dishonesty or false statement

are always sufficiently relevant to the truthfulness of the witness’s

testimony that protections against jury misuse of the prior-conviction

evidence is not necessary.”).        Similarly, rule 5.609(b) creates a

presumption of exclusion for convictions more than ten years old, which

suggests older convictions become less probative. Rule 5.609(a)(1) thus

tasks courts to use their discretion to ascertain the relative probative

value of each prior conviction within the rule’s scope.
                                          18

       A narrow set of factors cannot account for all circumstances or

conditions that might affect a prior conviction’s probative value. Instead,

discussion of a nonexhaustive list of circumstances that might affect a

conviction’s probative value is more useful. See United States v. Jackson,

627 F.2d 1198, 1209 (D.C. Cir. 1980) (articulating five common

circumstances the district court should consider but noting the list “does

not exhaust the range of possible factors”). 4 The conviction’s underlying

conduct might affect its probative value. For example, crimes of stealth

or premeditation may undermine a witness’s testimonial credibility more

substantially than crimes of impulse, carelessness, or moral turpitude as

perjury encompasses elements of stealth and planning.                       See, e.g.,

Weinstein, § 609.05[3][b], at 609–39 to 609–40 (noting crimes that imply

some dishonesty or stealth, such as theft, often have more probative

value then crimes of violence).         The need for prior conviction evidence

may also affect a conviction’s probative value. Id. § 609.05[3][e], at 609–

43 (“[T]hat a defendant’s testimony is important to demonstrate . . . his

or her defense constitutes a factor . . . .”).           Cumulative evidence, for

example, may carry less probative value. By contrast, where the witness

has boasted of his credibility, impeachment with a prior conviction may

be necessary to ensure the jury does not overvalue the defendant’s

credibility.   See Charles Alan Wright & Victor James Gold, 28 Federal

Practice and Procedure: Evidence § 6134, at 234–35 (1993) [hereinafter

Wright & Gold]. The substance of the defendant’s testimony could affect

        4The five common circumstances employed in federal court are: (1) the

impeachment value of the prior crime, (2) the date of the conviction and the defendant’s
subsequent history, (3) the degree of similarity between the past crime and the charged
crime, (4) the importance of the defendant’s testimony, (5) the centrality of the
credibility issue. Weinstein, § 609.05[3][a], at 609–38. These general circumstances
outline high-level relevant circumstances, but, as this opinion’s discussion shows, the
individual facts of each case may create different, unique applications of these general
circumstances.
                                     19

a prior conviction’s probative value as the testimony itself may be

inconsequential, noncredible, or conclusively shown credible by other

evidence. Id. As contemplated in rule 5.609(b), the period of time since

the prior conviction may affect probative value. Weinstein, § 609.05[3][c],

at 609–41.     Also, the defendant’s behavior or conduct since the

conviction may show changed or unchanged character which could affect

a conviction’s probative value.    These are nonexhaustive examples of

considerations that may affect the probative impeachment value of prior

conviction evidence.

      2. Prejudicial Effect. Prejudicial effect is the extent of the risk that

the jury may misuse the prior conviction evidence to decide the case on

an improper basis. The prejudice risks for a defendant–witness generally

fall into three categories. First, the jury may assume propensity, drawing

an inference of present guilt by assuming the defendant acted in

conformity with his prior conviction.      Harrington, 800 N.W.2d at 50;

Hackney, 397 N.W.2d at 726.         Second, the jury may use the prior

conviction to infer the defendant is a bad person deserving of

punishment and decide the case, in part, on their dislike for the

defendant, rather than the defendant’s testimonial credibility.       Parker,

747 N.W.2d at 206 (noting juries may use prior conviction evidence as

justification to convict with minimal concern for present guilt); accord

Gold, 15 Cardozo L. Rev. at 2313 (noting in a criminal prosecution “the

jury may ignore the issues and convict because evidence of prior

conviction suggests the accused is a bad person who, if not guilty of the

crime charged, may be deserving of punishment for something else”).

Finally, a jury may overweigh the impeachment value of prior conviction

evidence. Harrington, 800 N.W.2d at 50 (“[P]rejudice occurs if the fact

finder affords undue significance to a witness’s prior convictions . . . .”);
                                     20

see also Wright & Gold, § 6134, at 243–44 (detailing potential prejudice

risks caused by prior conviction evidence).

      Just as all convictions within rule 5.609(a)(1) contain some

probative value, prior convictions, by their nature, always contain some

degree of prejudicial risk.   The lay jury is often at risk to misuse the

evidence as it may have difficulty compartmentalizing evidence as going

towards a defendant’s testimonial credibility from inferences as to the

defendant’s character or propensity. Intellectually there is a distinction,

but human emotion makes it difficult to separate.        See Abraham P.

Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b),

608(b), and 609(a), 38 Emory L.J. 135, 135 (1989) (“[Lawyers] create

conceptual distinctions which, though capable of articulation, are not

always capable of application either by ourselves or by the juries that

ultimately must deal with them.”).

      Certain circumstances unique to the particular case may make the

prejudicial risks more acute.        For example, a more heinous prior

conviction might cause the jury to believe the defendant is a bad person

and lead the jury to decide the case without concern for present guilt.

Wright & Gold, § 6134, at 232.        Also, our case law has continually

cautioned against admitting prior convictions which are similar to the

defendant’s current charge for fear the jury will assume the defendant’s

guilt by inferring the defendant acted in conformity with his past

conduct. See, e.g., Harrington, 800 N.W.2d at 50 (warning convictions of

the same character pose a special risk of prejudice); Parker, 747 N.W.2d

at 210 (same); Hackney, 397 N.W.2d at 728 (same); Martin, 217 N.W.2d

at 542–43 (same). Juries may be more likely to misuse prior conviction

evidence in cases with weak evidence or cases that are he-said-she-said

swearing matches. United States v. Sanders, 964 F.2d 295, 299 (4th Cir.
                                    21

1992) (finding risk of prejudice could “tip the balance” in an

uncorroborated credibility contest). Multiple convictions, similarly, could

increase the risk of jury misuse.        These examples are not always

authoritative, nor are the examples exhaustive. Rule 5.609(a) demands

the district court exercise discretion in accord with the circumstances

surrounding a particular decision to ascertain the prejudicial effect prior

conviction evidence causes the accused.

      3. Balancing Probative Value and Prejudicial Effect. As stated, rule

5.609(a)(1) as applied to the accused is a rule of exclusion.      This rule

saddles the prosecution with the burden to show the defendant’s prior

conviction evidence is more probative to the defendant’s testimonial

credibility than prejudicial to the defendant. Iowa R. Evid. 5.609(a)(1).

      The balancing process, like all of rule 5.609(a), requires the district

court to exercise judgment. The court should identify and calculate the

probative value of the prior conviction as it relates to testimonial

credibility. It is equally important that the court identify what specific

prejudice might be realized. Only then can the court utilize meaningful

discretion to assess the prior conviction’s prejudicial effect.    Weighing

prejudicial effect requires probability estimates. How likely is the jury to

assume guilt through propensity or bad character, or how likely is the

jury to overemphasize the prior conviction’s impeachment value?          The

greater the probability of prejudice, the less likely the prosecution can

meet its burden.

      Rule 5.609(a) is an ideologically compromised rule of evidence

which requires the quantifying and balancing of vaguely described terms.

The rule strongly influences the defendant’s decision to testify, and it can

affect the outcome of trials.      The district court must exercise its

discretion and hold the prosecution to its burden of establishing that the
                                         22

prior conviction evidence has probative value which exceeds its

prejudicial effect to the accused.

      With these principles in mind, we turn to the application of rule

5.609(a) to the admission of Redmond’s first-degree harassment

conviction.

      C. Application of Rule 5.609(a)(1). First our task is to ascertain

the   probative   value     of   Redmond’s    prior   first-degree     harassment

conviction, or, stated another way, to determine the extent to which the

evidence undermines Redmond’s testimonial credibility. The record does

not reveal the circumstances surrounding Redmond’s first-degree

harassment conviction except that the conviction occurred on August 21,

2009, approximately two months before the present incident. This case

was a he-said-she-said case, and Redmond and P.M.’s credibility were

essential. Redmond’s testimony was brief, and his defense was he was

intoxicated, passed out early in the evening, and did not wake up until

the officer arrested him.

      In light of these facts, we have difficulty ascertaining extensive

probative value in the harassment conviction. Harassment has several

definitions, but primarily is defined as “[c]ommunicates with another . . .

without legitimate purpose and in a manner likely to cause the other

person annoyance or harm.” Iowa Code § 708.7(1)(a)(1). Since the State

did not introduce the circumstances surrounding the harassment, we

assume this general definition defines Redmond’s underlying conduct.

Harassment     thus   does       not   generally   involve   stealth   or   theft—

characteristics of perjury that impeach testimonial credibility to some

degree. Wright & Gold, § 6134, at 233. The crime does not necessarily

even require premeditation, but is often impulsive.           Id. (“[C]rimes . . .

involving premeditation are relatively higher in probative value because
                                     23

they suggest the witness is willing to break the law when it furthers his

interest.”).   The conviction’s probative value is limited to showing

Redmond has intended to disturb or upset others.         This showing may

allow the jury to infer Redmond might disregard his duty to testify

truthfully based upon his previous disregard of social communicative

norms for self-gratification. But “crimes based on conduct that is either

violent or disorderly are ordinarily not” as probative toward testimonial

credibility. Weinstein, §§ 609.04[3][b], 609.05[3][b], at 609–26.1 to 609–

26.2 & nn.22–25, 609–39 & n.17 (citing collections of cases).

       Ascertaining the prejudicial effect of the prior conviction as to

Redmond is the next step. To ascertain prejudicial effect, we first must

articulate what prejudicial risks are present. Here, the risk of propensity

is overwhelmingly present, as well as the risk the jury may assume

Redmond’s bad character as a reason for current guilt. The propensity

risk is obvious, so obvious it was the reason the State argued the

harassment conviction should be admitted:
       I think the fact that the defendant has just recently been
       convicted of Harassment in the First Degree, I believe while
       intoxicated as well, goes to establish that this type of
       behavior—that the defendant’s impeachment on this offense
       is proper . . . .
       ....
       I think it’s clear that the defendant acts in an aggressive and
       sometimes obviously violent or threatening manner when
       intoxicated given that previous conviction. . . . I was just
       going to raise it for the purpose of letting the jury know or
       making the jury aware that it exists.

       Several circumstances make the propensity risk substantial. First,

harassment is “communic[ation] . . . without legitimate purpose and in a

manner likely to cause the other person annoyance or harm.” Iowa Code

§ 708.7(1)(a)(1).   Notably, this definition also encompasses Redmond’s

alleged conduct charged in this case.      Juries are more susceptible to
                                    24

making an improper propensity inference when the prior conviction

involves a similar crime. “As a general guide, those convictions which

are for the same crime should be admitted sparingly . . . .” Daly, 623

N.W.2d at 802 (quoting Gordon, 383 F.2d at 940) (internal quotation

marks omitted)). This risk is heightened because the prior harassment

was not defined for the jury so jurors were free to speculate what

behavior may have formed the basis of Redmond’s prior conviction.
      The evidence in this case also creates a substantial risk the jury

will improperly use the prior conviction evidence to assume guilt through
propensity.   The case was tried to the jury based on he-said-she-said

facts. As the State aptly observed in its closing argument “all this case

boils down to . . . is whether or not [P.M.] is telling the truth or whether

or not the defendant is.”      There was no corroborating evidence or

witness. P.M. said she went to Redmond’s room and he exposed himself,

and Redmond says otherwise.       Their testimony is irreconcilable.   In a

similar situation, the United States Court of Appeals for the Fourth

Circuit reasoned:

      The assault prosecution turned essentially upon the jury’s
      assessment of the relative credibility of Sanders and
      Jenkins, the direct protagonists, who gave widely conflicting
      versions of the stabbing. In such a situation, evidence
      having no possible basis except to show a propensity for
      violence on the part of the defendant obviously has the
      capacity to tip the balance in such a swearing contest.

Sanders, 964 F.2d at 299. Redmond’s harassment conviction, similarly,

“ha[d] the capacity to tip the balance” in this swearing contest. Id. The

harassment conviction creates an acute risk the jury will resort to

propensity or assume his guilt based upon recent bad character as a way

to resolve the irreconcilable, uncorroborated evidentiary dispute.
                                    25

        Rule 5.609(a)(1) finally requires the court to balance the prior

conviction’s probative value with its prejudicial effect. The harassment

conviction undermines Redmond’s testimonial credibility to some extent,

as it shows he is willing to disregard social conventions for self-

gratification.   But this inference can be derived from most any crime.

The similarities between Redmond’s harassment conviction and his

current charge, and the he-said-she-said nature of the case, create a

substantial probability the jury will misuse the prior conviction evidence

and assume present guilt based upon his prior conviction. The State has

fallen far short of meeting its burden of showing the probative value of

Redmond’s harassment conviction outweighs its prejudicial effect to

Redmond.      Substantial evidence does not support the district court’s

decision to admit the prior conviction.     Accordingly, the district court

abused its discretion by admitting Redmond’s harassment conviction

under rule 5.609(a)(1).

        D. Admission Was Not Harmless Error. A trial court’s erroneous

admission of evidence is only reversed on appeal if “a substantial right of

the party is affected.” Parker, 747 N.W.2d at 209 (quoting Iowa R. Evid.

5.103(a)).   An erroneous evidentiary ruling is harmless if it does not

cause    prejudice.    See   id.   Where,   as   here,   the    party   claims

nonconstitutional error, prejudice occurs when the party has “been

‘injuriously affected by the error’ or . . . has ‘suffered a miscarriage of

justice.’ ” Id. (quoting State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)).

        Past cases have held the erroneous admission of the defendant’s

prior conviction does not violate the defendant’s “substantial right[s]”

when overwhelming evidence supports his conviction.            Id. at 210; see

also State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005); State v. Holland,

485 N.W.2d 652, 656 (Iowa 1992). This is not that type of case. P.M.
                                     26

testified to one version of the events on that evening; Redmond to

another.   There was little corroborating evidence.    The district court’s

admission of Redmond’s prior conviction carried an acute risk of jury

misuse. The district court’s error was not harmless.

      VI. Disposition.

      The district court abused its discretion in permitting the State to

impeach Redmond with his prior first-degree harassment conviction.

The error was not harmless.      Accordingly the decision of the court of

appeals is vacated, the district court judgment is reversed, and the case

is remanded to the district court for a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW

TRIAL.

      All justices concur except Mansfield, J., who takes no part.
