Friday, October 19, 2007
In an earlier blog entry, I noted that it appeared that courts pretty consistently exclude evidence based upon the evidence's prejudicial effect outweighing its probative value without making the required finding under Federal Rule of Evidence 403 that the evidence's prejudicial effect substantially outweighed its probative value. I then left open the question of whether courts err to an even greater degree when considering prior convictions under Federal Rule of Evidence 609, with its changes to the Rule 403 balancing test depending on whether the prior conviction/date of release is more than 10 years-old and whether the prior conviction was a conviction of the criminal accused or a conviction of some other witness/party.
Well, in my review of recent evidence cases, I found a concrete example of both a litigant and a court bungling the 609 analysis. At a Federal District Court trial in Colorado, Frederick Oluwole Solarin was convicted of armed bank robbery and using or carrying a firearm during and in relation to a crime of violence. Over defense counsel's objection, the prosecutor was allowed to introduce into evidence Solarin's 5 year-old conviction for aggravated robbery with intent to kill.
Because Solarin was the criminal accused, and because the date of his prior conviction (and date of release) was less than 10 years old, pursuant to Federal Rule of Evidence 609(a)(1), the prior conviction should have been admitted only if the district court determined that the conviction's probative value (in impeaching Solarin's testimony) outweighed its prejudicial effect.
Solarin's attorney recently appealed the conviction based in part on the improper introduction of this conviction, but he erroneously argued that the conviction was inadmissible under Rule 403 because its probative value was substantially outweighed by its prejudicial effect. As noted, under Rule 609(a)(1), all that defense counsel needed to prove was that the prior conviction's probative value did not outweigh its prejudicial effect.
The Tenth Circuit Court of Appeals, however, apparently followed the (il)logic of Solarin's attorney, concluding that the District Court properly allowed the prior conviction into evidence because while the conviction had little probative value, it also had little prejudicial effect. This conclusion makes it seem that the probative value of the conviction and its prejudicial effect were commensurate, meaning that the prior conviction should have been excluded under Rule 609(a)(1).
The Tenth Circuit and the District Court also ostensibly erred in finding that the conviction had little prejudicial effect. One of the major factors that courts consider in determining the prejudicial effect of prior convictions is the similarity between the prior conviction and the crime charged. See, e.g., United States v. Reece, 797 F.Supp. 843, 848 (D. Colo. 1992). Here, Solarin was charged with, inter alia, armed bank robbery, and his prior conviction was for aggravated robbery with intent to kill. Certainly, then, based upon this similarity, the prior conviction had more than a "little" prejudicial effect on Solarin.
(I also note that Solarin's prior conviction occurred when he was 16 years-old, which might have made the prior conviction a juvenile adjudication. In this event, Federal Rule of Evidence 609(d)'s stricter test for admissibility should have been applied. I can't tell from the court's opinion, however, whether this was a juvenile adjudication).