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Univ. of South Carolina School of Law

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Wednesday, February 6, 2008

Raising Arizona: Judge Prevents Defendant From Using Prior Conviction To Impeach Neighbor

An Arizona judge has ruled that Ronald D. Koch cannot impeach the credibility of his neighbor, Joshua Liest, through Liest's 1996 felony conviction for receiving stolen property in Koch's trial for aggravated assault and endangerment.  It is undisputed that the 50 year-old Koch shot Koch twice on August 13th during a disagreement, but the two men disagree as to what precipitated the shooting.  Koch claims that he was on a tractor, cutting grass on his own property when Liest approached him in a hostile and threatening manner while muttering under his breath in a threatening manner.  Koch also claims that he believed that Liest began reaching behind his back for a weapon, which led Koch to shoot him twice.  Koch is the president of an association that maintains the water supply from a well that served Kock, Liest, and others, and Koch was in the process of taking legal action against Liest for failure to pay his assessments at the time of the shooting.  Liest counters that he "did not reach for anything" before Koch shot him, and contends that the shooting took him completely by surprise.

The article reporting on the story notes that Koch tried to impeach Liest's credibility by introducing evidence on Liest's felony conviction on May 9, 1996 for receiving stolen property.  The article then notes that the judge refused to allow such impeachment during the trial, scheduled to start on February 25th, pursuant to the Arizona Rules of Evidence, which state that prior felony convictions more than 10 years old are inadmissible to impeach a witness/party unless a strict test is satisfied.  Specifically, under Arizona Rule of Evidence 609(b), "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantiall outweighs the prejudicial effect." (emphasis added).

The important point in this rule is that in determing whether a prior conviction is older than 10 years, you go by the later of the date of the conviction or the date of release.  So, the fact that Liest was convicted on May 9, 1996 is irrelevant if he subsequently served time; it would be his date of release that would be relevant, with the question being whether he was released before late February, 1998.  Unfortunately, the stories on the case don't mention Liest's release date, even though it is the only relevant date (unless Liest's case is the rare case where he served his time before his trial and was then convicted and sentenced to "time served," which would make the conviction date the later date).  I'm assuming that the judge hearing Koch's case relied on the correct date, but with the way that courts frequently mishandle Rule 609 objections, one can never be sure.

-CM   

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