Friday, August 1, 2008
Ten Years Have Got Behind You: Supreme Court Of Illinois Clarifies Ten Year Rule For Conviction-Based Impeachment
The recent opinion of the Supreme Court of Illinois in People v. Naylor, 2008 WL 2940572 (Ill. 2008), finally resolved a quandary that had plagued Illinois courts for decades: how to measure the ten year time limit on conviction-based impeachment. I refer to this as a "time limit" because Illinois does not have an equivalent state counterpart to Federal Rule of Evidence 609(b), which states in relevant part that a felony conviction or a conviction for a crime involving an act of dishonesty or false statement 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 substantially outweighs its prejudicial effect."
Illinois, however, which does not have codified rules of evidence, actually adopted a draft version of Federal Rule of Evidence 609(b) which stated that such "old" convictions are per se inadmissible for impeachment purposes, without an "interests of justice" exception. See People v. Montgomery, 268 N.E.2d 695 (Ill. 1971). After Montgomery, Rule 609(b) was amended to quell a debate that actually threatened the entire project of creating a Federal Rules of Evidence, but the Supreme Court of Illinois subsequently reaffirmed that it was sticking with the draft version of Rule 609(b), rather than the version that was enacted. See People v. Yost, 399 N.E.2d 1283 (Ill. 1980). So, how did this all come into play in Naylor?
Well, in Naylor, John Naylor was indicted on six counts relating to possession of heroin with intent to deliver and delivery of heroin, acts which he allegedly committed in March 2000. Naylor's trial finally commenced in August 2004, which is also when Naylor testified and when he was impeached by the prosecution through evidence of his December 1990 conviction for aggravated battery. After Naylor was convicted, he appealed to the Appellate Court of Illinois, which reversed his conviction, and the Supreme Court of Illinois subsequently affirmed the appellate court's opinion. Why?
Well, let's look at how the ten year clock works. The ten year clock begins ticking under Federal Rule of Evidence 609(b), in both its draft and enacted forms, with the date of the prior conviction or the date of release, whichever is later. So, if a witness was convicted of a crime more than ten years before the date when the clock stopped but was not released from confinement for that crime until ten years or less before the clock stopped, Rule 609(b) would cover the conviction, with the date of release being the determinative date. Conversely, if the witness was convicted of a crime and sentenced to time served or not sentenced to incarceration, the date of conviction would be the determinative date. So, what was the determinative date in Naylor?
Well, it turns out that it was December 2000 because the State did not present evidence of Naylor's release date, a mistake which could have been fatal. Why? Well, most courts hold that the ten year clock stops on the date on which the witness testifies. See, e.g., United States v. Watler, 461 F.3d 1005, 1008-09 (8th Cir. 2006). Because Naylor didn't testify until August 2004, more than ten years had elapsed since the date of his conviction, but more than ten years might not have elapsed since he was released from confinement (if he was incarcerated for about five years or more). So, why did the trial court allow for Naylor to be impeached?
Well, the court in Naylor noted that over the years, several Illinois courts found that the clock actually stopped on the date that the defendant allegedly committed the crime for which he was being tried. The court expressly disavowed these decisions based upon two grounds, only one of which makes sense to me. The ground that makes sense to me is that stopping the clock on the date of the alleged crime "presumes that the defendant must be guilty." I agree with the court's conclusion that, "To state this presumption is to reject it."
The court's second rationale, however, was that these courts were wrong because their determination of when the clock stops makes no sense when the individual to be impeached is merely a witness and not a testifying defendant. Furthermore, the court concluded that "[t]o the extent that the State proposes a separate rule for criminal defendants who testify on their own behalf, such a suggestion is not well-taken." This leads me to ask, "Why not?"
Looking at Federal Rule of Evidence 609(a)(1), we see that criminal defendants and other witnesses are treated differently, with a felony conviction being admissible for impeachment purposes against the former only if the state proves that its probative value outweighs its prejudicial effect but admissible against another witness as long as its probative value is not substantially outweighed by dangers such as the danger of unfair prejudice. Meanwhile, Federal Rule of Evidence 609(d) states that evidence of a juvenile adjudication is per se inadmissible against a criminal defendant but admissible against other witnesses in criminal cases under certain circumstances. Thus, it seems to me that there was no reason for the Supreme Court to reject a criminal defendant/other witness dichotomy out of hand.