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Univ. of South Carolina School of Law

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Sunday, February 3, 2008

Georgia On My Mind: Georgia Makes Seemingly Disastrous First Application Of Its Criminal Impeachment Rule

In Newsome v. State, 2008 WL 186210 (Ga. App. 2008), the Court of Appeals of Georgia put forth a confusing interpretation of its version of Federal Rule of Evidence 609.  In Newsome, a jury found Kenneth Newsome guilty of aggravated assault, aggravated stalking, cruelty to a child, and possession of a firearm during the commission of a felony after, inter alia, hearing testimony that Newsome violated a protective order, drove to his wife's house, and opened fire on her and their baby son when they came outside of the house. See id.  At trial, the prosecution also introduced certified copies of two of Newsome's prior convictions for aggravated assault and possession of a firearm during the commission of a felony pursuant to OCGA Section 24-9-84.1, which was enacted in 2005, and which governs when prior convictions can be used to impeach the testimony of witnesses or parties.

The Georgia statute is very similar to Federal Rule of Evidence 609.  Under both, a witness or party previously convicted of a misdemeanor involving dishonesty or false statement, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, without the court needing to balance the probative value of the conviction against its prejudicial effect.  Under both, a witness or party besides a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value is not substantially outweighed by its prejudicial effect pursuant to Federal Rule of Evidence 403.  In either of these circumstances, if the later of the conviction date or date of release is more than 10 years old, the conviction is inadmissible to impeach unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

The only place where the Georgia state differs from Federal Rule of Evidence 609 is in its treatment of criminal defendants.  Under Federal Rule of Evidence 609, a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value outweighs its prejudicial effect.  Under OCGA Section 24-9-84.1, a criminal defendant previously convicted of a felony, with the later of the conviction date or date of release being 10 years old or less, can be impeached by the conviction, if the court finds that the conviction's probative value substantially outweighs its prejudicial effect. (emphasis added).

Newsome argued on appeal, inter alia, that the portion of the Georgia statute dealing with impeachment of criminal defendants by prior convictions should be given the same effect as the portion dealing with the impeachment of parties/ witnesses by 10+ year old convictions.  The Court of Appeals of Georgia noted that no previous case had interpreted this portion of the Georgia statute but rejected Newsome's contention because the portion dealing with criminal defendant impeachment did not replicate the portion dealing with 10+ year old convictions (for instance, it didn't mention courts needing to find that impeachment would be "in the interests of justice").

The court instead found that the portion should be given its plain meaning:  "the trial court shall admit the prior crimes evidence upon a determination that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant."  This conclusion makes sense in and of itself, but then, in the very next sentence, the court noted:  "This balancing test is in keeping with a long line of Georgia cases which imbue the trial judge with the discretion to exclude evidence if 'its prejudicial impact substantially outweigh[s] its probative value.'"  This makes no sense to me.

Saying that a conviction can be used to impeached a criminal defendant if its probative value substantially outweighs its prejudicial effect means that it can be used if, for instance, the conviction has high probative value and medium prejudicial effect or medium probative value and low prejudicial effect.  If probative value and prejudicial effect are somewhat equal, but probative value is slightly higher than prejudicial effect, the conviction would be inadmissible because its probative value would not substantially outweigh its prejudicial effect.

So, how is this balancing test "in keeping with a long line of case" holding that evidence can be excluded if its probative value substantially outweighs its prejudicial effect?  This is the classic, liberal Rule 403 balancing test, under which evidence is admissible, for instance, if it has high probative value but high prejudicial effect or medium probative value but medium prejudicial effect.  Under this classic balancing test, if probative value and prejudicial effect are somewhat equal, evidence is admissible even if prejudicial effect is somewhat higher than probative value because its prejudicial effect would not substantially ouweigh its probative value.  The Georgia rule for impeaching criminal defendants through prior convictions thus is not in keeping with prior cases but instead turns the balancing test in those cases on its head.

Now, this statement by the Georgia court might have been fine if I thought that it was merely an innocent misstatement not altering the substance of its decision.  This, however, does not appear to be the case.  The court found that Newsome's prior convictions had "crucial probative value" because there was only one witness to the shooting, and his convictions were thus needed to impeach his testimony.  Now, unfortunately, the court didn't address prejudicial effect, but it is easy to see that Newsome's prior convictions had high prejudicial effect.  Courts across the country have found that when prior convictions used to impeach a criminal defendant are similar to the crime with which he is charged, the convictions have high prejudicial effect because of the fear that they will be taken as character, not impeachment, evidence by the jury. See, e.g., United States v. Sanders, 964 F.2d 295, 298 (4th Cir. 1992).

In Newsome's case, he was charged with, inter alia, aggravated assault and possession of a firearm during the commission of a felony and his prior convictions were for aggravated assault and possession of a firearm during the commission of a felony.  Clearly, then, these convictions had high prejudicial effect to counteract their high probative value.  I thus don't see how the Georgia court could have determined that the convictions' probative value substantially outweighed their prejudicial effect, which leads me to believe that the court did not make a mere misstatement but instead fundamentally misapplied OCGA Section 24-9-84.1.

-CM 

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Comments

Just came across your blog this morning at work. Enjoying all of the older posts (as you can tell). I don't know if you'll be interested in answering this but I was confused by something in this article:

"So, how is this balancing test 'in keeping with a long line of case' holding that evidence can be excluded if its probative value substantially outweighs its prejudicial effect?"

The court didn't say that. The court said: "This balancing test is in keeping with a long line of Georgia cases which imbue the trial judge with the discretion to exclude evidence if 'its prejudicial impact substantially outweigh[s] its probative value.'"

Correct me if I'm mistaken, but the GA statute is satisfied if the trial court determines the probative value of Newsome's prior convictions substantially outweighs the prejudicial effect. "Crucial probative value" sounds as if the court felt the prior convictions were substantial. Perhaps asking for a more detailed opinion from the trial judge would reveal that his holding was specifically based on a finding that probative value of Newsome's prior convictions substantially outweighed its prejudicial effect. I believe that is all that would be necessary for the appellate court to affirm the decision.

It seems like the appellate court is merely saying, on a related note, affirming this opinion is in keeping with cases in which trial judges have exercised the related--although not relevant to the present case--power allowing them "the discretion to exclude evidence if" they find "'its prejudicial impact substantially outweigh[s] its probative value.'"

Anyways, cheers, keep up the great posts.

Posted by: Kevin | Jun 22, 2010 6:56:01 AM

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