Thursday, October 16, 2008
The recent opinion of the Seventh Circuit in United States v. Jackson, 2008 WL 4553061 (7th Cir. 2008), illustrates how important a few weeks can be in determining whether a felony conviction is admissible to impeach a testifying criminal defendant. I also think the court it contains an incorrect conclusion.
In Jackson, the defendants Essie Jackson and Joe Jackson were convicted of mail fraud and conspiring to commit mail fraud along with their co-defendant, Angela Blackwell Jackson. After they were convicted, the defendants appealed to the Seventh Circuit on a number of grounds, including Joe's argument that the trial court improperly permitted the prosecution to impeach him through evidence of his 1996 felony conviction for receiving stolen property.
While the Seventh Circuit didn't indicate the exact relevant dates, it noted that "[a]t the time of the trial, the conviction was just a few weeks shy of being ten years old." And why was this point so important? Well, under Federal Rule of Evidence 609(a)(1), "evidence that an accused has been convicted of...a [felony] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Conversely, according to Federal Rule of Evidence 609(b),
"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."
In other words, if a testifying criminal defendant's felony conviction is less than ten years old, it is admissible for impeachment purposes if its probative value outweighs its prejudicial effect, but if it is more than ten years old, it is only admissible if its probative value substantially outweighs its prejudicial effect. In weighing probative value and prejudicial effect, courts typically consider 5 factors, which were actually first articulated by the Seventh Circuit in United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976):
(1) The impeachment value of the prior crime;
(2) The point in time of the conviction and the witness' subsequent history;
(3) The similarity between the past crime and the charged crime;
(4) The importance of the defendant's testimony; and
(5) The centrality of the credibility issue.
In Jackson, the Seventh Circuit noted that the trial court properly weighed these factors and did not abuse its discretion in deeming the prior conviction admissible for impeachment purposes. Specifically, the Seventh Circuit noted that the trial court reached the following conclusions:
-the prior conviction was almost ten years old, meaning that factor 2 weighed (strongly) against admission;
-the conviction for receipt of stolen property "did bear on Joe's truthfulness,...although the crime of receiving stolen property is not a crime of dishonesty per se," meaning that factor 1 weighed somewhat in favor of admission;
-"the nature of the charges rendered Joe's intent and state of mind central issues in the case; and his credibility as a witness would be a key factor in assessing his testimony as to those issues," meaning that factor 5 weighed strongly in favor of admission.
-"the evidence held some potential to prejudice" Joe, meaning that factor 3 weighed somewhat against admission.
Unfortunately, the court did not mention factor 4, but it seems clear to me that the trial court should have found that factor 4 weighed heavily against admission because if "Joe's intent and state of mind [were] central issues in the case," his testimony was extremely important, and the approval of his prior felony conviction for impeachment purposes could easily have dissuaded him from testifying.
So, tallying things up on my scorecard, 2 factors weighed strongly against admission, 1 factor weighed somewhat against admission, 1 factor weighed somewhat in favor of admission, and 1 factor weighed strongly in favor of admission. By my math, and even if you disagree with my math a bit, that would mean that probative value did not outweigh prejudicial effect, and the trial court did abuse its discretion. Of course, if the trial had started a few weeks later, we likely wouldn't even be having this discussion because I don't see any argument that the above factors compel a finding that probative value substantially outweighed prejudicial effect.
So, where did the trial court err, and why did the Seventh Circuit not mention factor 4? I think that the answer to the second question might answer the first question, with the analysis coming courtesy of Jeffrey Bellin in his forthcoming article, Circumventing Congress. In it, he argues that many courts have either read factor 4 out of the Federal Rule of Evidence 609(a)(1) analysis or erroneously transformed it from a factor that usually supports inadmissibility to a factor that supports admissibility. I strongly agree with Bellin's analysis in the article, and I hope that courts take heed and either scrap the 5 factor test or at least start applying it correctly.