Tuesday, May 13, 2008
The Ninth Circuit's recent opinion in In re Olson, 2008 WL 1932014 (9th CIr. 2008), contains an important discussion of when evidence of a prior crime can (and cannot) be used to impeach a witness pursuant to Federal Rule of Evidence 609 and state counterparts. In Olson, Roy Olson appealed pro se from a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's order granting appellees retroactive relief from an automatic stay in order to validate a state court judgment entered after the bankruptcy order.
One basis for Olson's appeal was that the bankruptcy court impermissibly precluded him from impeaching a witness against him with evidence that the witness was indicted for bankruptcy fraud. The Ninth Circuit correctly rejected this argument, noting that Federal Rule of Evidence 609 only permits a witness to be impeached through evidence that he "has been convicted of a crime;" evidence that a witness has merely been indicted for an alleged crime is not admissible under Rule 609.
The Olson case is important because I have seen many students get confused between the rules regarding character evidence and the rules regarding convictoon-based impeachment. Under Federal Rule of Evidence 404(b) (and state counterparts), evidence that a party/witness committed a crime is admissible to prove, inter alia, knowledge, plan, or identity, regardless of whether the party/witness was charged or convicted of that crime. So, let's say that a defendant, Dennis, is on trial for breaking into a safe and stealing $100,000. Part of Dennis' defense at trial is that he would have no idea how to break into a safe. The prosecution, however, has a witness who will testify that he is aware of a prior safe robbery committed by Dennis. Even if Dennis were never charged/convicted with this prior crime, the witness' testimony is admissible to prove knowledge (that Dennis knew how to break into a safe) as long as the judge finds that a reasonable jury could find that Dennis committed the prior crime by a preponderance of the evidence pursuant to Federal Rule of Evidence 104(b).
Conversely, as noted in the Olson opinion, prior crimes of a witness can only be used to impeach that witness if he was actually convicted of the prior crime.