Thursday, September 25, 2008
Not Feeling Minnesota: Court Of Appeals Of Minnesota Makes Nonsensical Rule 609(b) Rulings In Criminal Sexual Conduct Case
In my mind, the recent opinion of the Court of Appeals of Minnesota in State v. Weiss, 2008 WL 4299619 (Minn.App. 2008), contains a nonsensical felony impeachment ruling. In Weiss, a jury found Scott Edward Weiss guilty of criminal sexual conduct and kidnapping based on evidence that he sexually assaulted two teenagers in the cab of his pickup truck on a dark, isolated, rural road. The record in Weiss revealed that Weiss has five prior felony convictions, with the state seeking to impeach him through four of these convictions in the event that he chose to testify: his convictions for third-degree criminal sexual conduct in 1995, first-degree criminal sexual conduct in 1988, second-degree criminal sexual conduct in 1981, and wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" in 1996.
Before trial, the district court ruled that "if the defendant elects to take the witness stand that the prior felony convictions, at least on the two criminal sexual conduct charges will be allowed for impeachment purposes." Upon reading this passage, I raised the red flag, knowing that when considering whether to admit a prior conviction for impeachment purposes, i.e., for purposes of showing that the witness' trial testimony cannot be trusted, the main probative value courts should consider is how much bearing the prior conviction has on the witness' (dis)honesty, and the main prejudicial effect courts should consider is the danger that the jury will misuse the conviction as propensity character evidence. Ostensibly a conviction for wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" has high probative value on the issue of a witness' honesty while a defendant's prior convictions for criminal sexual conduct in his trial for criminal sexual conduct have high prejudicial effect because of the danger that jurors will misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist."
Apparently, this passage also raised a red flag with the Minnesota Court of Appeals, which correctly noted that "[t]he district court did not specify which two of the four convictions could be introduced." As the Court of Appeals also correctly noted, the district court compounded the problem when Weiss raised the issue again at trial, and the district court judge ruled that "if Weiss testified, the jury would be informed 'of his prior felony record,' which suggest[ed] that the district court would have permitted the state to introduce all four prior convictions."
Based upon this ruling, Weiss did not testify, he was convicted, and he appealed, claiming that the district court erred in deeming these convictions admissible in the event that he chose to testify. The Court of Appeals rejected this argument, finding that the district judge did nor err in deeming any of these convictions admissible. I'm not sure that I agree with any of these rulings, but I will only focus on the rulings finding that the district court judge properly approved impeachment of Weiss through his 1981 and 1988 convictions for criminal sexual conduct.
Because both of these convictions were more than 10 years old, the Court of Appeals had to decide whether they were admissible under Minnesota Rule of Evidence 609(b), which states in relevant part that:
"[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 substantially outweighs its prejudicial effect."
In other words, the court had to ask whether the probative value of the prior criminal sexual conduct convictions for proving that Weiss could not be trusted as a witness substantially outweighed their prejudicial effect, i.e., the danger that jurors would misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist." The Court of Appeals noted that in making this determination, Minnesota courts weigh five factors (even though the district court did not weigh them):
"(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue."
The court correctly noted that factors 4 and 5 often counterbalance and that they counterbalanced in this case, leaving factors one through three. With regard to the first factor, the Court of Appeals noted that the Supreme Court of Minnesota "repeatedly has held that evidence of any prior felony conviction, including convictions for crimes that do not involve dishonesty, generally has impeachment value because 'it allows the jury to see the whole person and thus to judge better the truth of [the witness's] testimony.'" The court thus found that this factor weighed somewhat in favor of admission of the convictions.
Simply put, the court was wrong, unless it was saying that factor 1 favors admission of any felony conviction, which, of course, would also be wrong. Instead, sex offenses and prostitution are "thought to have little if any bearing on veracity," making them "more likely to be precluded" under Rule 609 based upon their low probative value. Peter Nicholas, "They Say He's Gay": The Admissibility of Sexual Orientation, 37 Ga. L. Rev. 793, 830 (2003).
Under factor two, the court found that the 1981 and 1988 convictions were old, decreasing their probative value, but that Weiss had subsequent, continuing conflicts with the law, increasing their probative value and indicating that he was not rehabilitated. Based upon these considerations, the Court of Appeals found that factor two weighed somewhat in favor of admission, and while I might quibble and say that the factor was neutral at best (after all, these were Reagan-era convictions), I don't have a huge objection to this conclusion.
The same can't be said under factor three, where the court noted the similarity between the prior convictions for criminal sexual conduct and the present charge of criminal sexual conduct and concluded that factor three "weigh[ed] somewhat against admitting them for impeachment purposes." I strongly disagree with this conclusion. Such a conclusion might be appropriate in, say, a murder case in which the defendant has a prior conviction for assault, and the court determines that the past crime and the charged crime are both crimes of violence but that they are also different in degree and type. Conversely, in Weiss, Weiss' past crimes and the charged crime were both for criminal sexual conduct, raising a strong probability that the jurors would misuse the convictions as propensity character evidence, and making factor three weigh strongly against admission.
Nonetheless, even if we are sticking with the Court of Appeals' conclusions, it found that two factors weighed somewhat against admission while three factors weighed somewhat in favor of admission. I don't see how that supports a finding that the probative value of the convictions substantially outweighed their prejudicial effect, especially in light of the fact that the Advisory Committee Note to the federal counterpart to Minnesota Rule of Evidence 609(b) indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." And when we consider the invalidity of the Court of Appeals' conclusions, it decision to admit Weiss' prior criminal sexual conduct convictions in the event that he chose to testify becomes even more nonsensical.