Monday, June 2, 2008
Imbalanced Opinion: Eleventh Circuit Approves Of Rule 609(a)(1) Impeachment Without Mention of Balancing Test
The Eleventh Circuit's recent opinion in United States v. Pedron, 2008 WL 2222038 (11th Cir. 2008), is the latest example of a court engaging in an improperly curt consideration of whether a trial court properly allowed for the prosecution to impeach a criminal defendant through a felony conviction under Federal Rule of Evidence 609(a)(1). In Pedron, Jose Pedron appealed from his convictions and 175-month sentence for possession with intent to distribute cocaine, possession with intent to distribute amphetamines on July 14, 2006, possession with intent to distribute amphetamines on July 17, 2006, and possession of cocaine. On appeal, Pedrom claimed, inter alia, that the district court abused its discretion by allowing the prosecution to impeach him with a prior conviction for conspiracy to distribute controlled substances.
The Eleventh Circuit then noted that under Federal Rule of Evidence 609(a)(1), for purposes of attacking a testifying criminal defendant's character for truthfulness, a prior conviction "shall be admitted if the court determines that the probative value ... outweighs its prejudicial effect to the accused...." Without any further explication, the Eleventh Circuit concluded: "At trial, Pedron put his credibility at issue by testifying, and the district court limited the government to one question about the conviction and later admonished the jury that a prior conviction could not be considered in determining Pedron's guilt in this case. In so doing, the district court did not abuse its discretion in admitting Pedron's prior conviction."
My response is that the court left out the most important part of the analysis: the balancing of probative value and prejudicial effect. The Eleventh Circuit's opinion contains no indication that the district court found that the probative value of Pedron's prior conviction outweighed its prejudicial effect (and, of course, no indication that the Eleventh Circuit reviewed the district court's balancing). Furthermore, without knowing more about the prior conviction based upon the Eleventh Circuit's curt conclusion, I would guess that the impeachment was improper Why?
Well, according to the Advisory Committee's Note to the 1990 amendment to Rule 609, "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice--i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes." This danger is at its highest when, as in Pedron's case, the criminal defendant's prior convictions are similar to the charged crime(s). How do I know this?
Well, courts in several cases apply a five factor test before deciding whether a criminal defendant can be impeached by a prior felony conviction. These factors are:
-1. The impeachment value of the prior crime;
Under factor 3, the more similar the past crime and the charged crime(s), the more prejudicial the proposed impeachment because of the fear that jurors will use the conviction not as impeachment evidence but as propensity evidence. So, why didn't the Eleventh Circuit apply the five factor test? Well, like the eternal question of how many licks it takes to get to the center of a Tootsie Roll Pop, the world may never know. In some cases, the Eleventh Circuit has applied the five factor test. See, e.g., United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992). In other cases, like the Pedron case, it hasn't applied it. I don't see any justification for not applying the five factor test or at least weighing probative value and prejudicial effect in some manner, and, in cases like the Pedron case, the likely result is felony convictions being admitted against criminal defendants despite their high prejudicial effect.