Sunday, September 14, 2008
Putting On The Ritz: New York Court Makes Seemingly Improper Rule 609(b) Ruling In Slip And Fall Case
I think that the recent opinion of the United States District Court for the Southern District of New York in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 WL 4155635 (S.D.N.Y. 2008), contains a misapplication of Federal Rule of Evidence 609(b). In Sanders, Dean Sanders sustained a fractured ankle and fibula when he fell in a condo unit at the Ritz-Carlton Golf Club & Spa in Jupiter, Florida. Sanders alleged that the marble floor of the unit was covered with dust or film and that his fall was a result of the defendants' negligence in failing to keep the marble floor of his unit clean and free of slippery materials. The defendants countered that there was no dust on the unit's marble floor and that even if there were dust on the floor, they neither caused the dust to be there nor had notice of the dust.
Before trial, the defendants brought a motion in limine, pursuant to Federal Rule of Evidence 609(b) to admit Sanders' 1987 conviction for tax evasion and 1996 RICO conviction in the event that he testified for impeachment purposes. The court noted that both of these convictions were crimes of "dishonesty or false statement" (or crimen falsi) under Federal Rule of Evidence 609(a)(2) and thus per se admissible to impeach Sanders, assuming that the convictions were timely.
You see, crimen falsi convictions are per se admissible under Federal Rule of Evidence 609(a)(2) only if the later of the date of the conviction or the date of the witness' release from confinement was 10 years or less before trial. If the date of conviction or the date of release was more than 10 years old, Federal Rule of Evidence 609(b) indicates, inter alia, that:
"Evidence 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."
The court then found that Sanders was released from incarceration for his 1996 RICO conviction in 2000, making it per se admissible to impeach him under Federal Rule of Evidence 609(b). It found, however, that Sanders was released from incarceration for his 1987 tax evasion conviction in 1987, making it more than 10 (indeed, more than 20) years old. The court then cited to the Advisory Committee Note to Federal Rule of Evidence 609(b), which indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." The court, however, then proceeded to find such "exceptional circumstances" because: (1) Sanders tax evasion conviction was in the nature of crimen falsi, meaning that it had high probative value, and (2) "the jury will be asked to assess Sanders's credibility in determining whether dust on the floor caused his injuries," making his credibility a central issue at trial.
With due respect to the court, I don't see how the second factor is exceptional. In almost any case where a party takes the witness stand, he will make claims that counter those of the other party's witnesses, making his credibility essential. And while crimen falsi convictions are thought to be unusually probative, providing a somewhat "exceptional" circumstance, there are two other factors militating against admission.
The first is that, the older a conviction, the less probative value it has. See, e.g., United States v. Cook, 608 F.2d 1175, 1194 (9th Cir. 1979). Here, as noted, Sanders' tax evasion conviction not only falls on the bad side of the 10 year time limit, but it is in fact more than 20 years old, greatly diminishing its probative value. Second, and this is a point that I cannot believe that the court failed to address, the probative value of Sanders' tax evasion conviction was greatly lessened by the fact that the court already approved his impeachment through evidence of his RICO conviction.
Courts in Federal Rule of Evidence 609(b) cases typically consider the evidentiary need of the impeaching evidence at issue. If the party seeking to impeach has no other methods by which it can impeach the opposing party, the "old" conviction increases in probative value while the converse applies when it has other methods at its disposal. Compare United States v. Pritchard, 973 F.2d 905 (11th Cir. 1992), with United States v. Hamilton, 48 F/3d 149 (5th Cir. 1995).
And here, the United States District Court for the Southern District of New York's argument that crimen falsi convictions are unusually probative should have cut against admissibility of the tax evasion conviction. Because the defendants already could impeach Sanders through his unusually probative RICO conviction, the probative value of his tax evasion conviction was greatly lessened, meaning that it almost certainly shouldn't have been approved for admission under Federal Rule of Evidence 609(b).