Friday, December 5, 2008
Easier Rhode To Admissibility: Murder Appeal Reveals Differences Between Federal And Rhode Island Rules Of Evidence On Conviction Impeachment
The recent opinion of the Supreme Court of Rhode Island in State v. Gillespie, 2008 WL 5089111 (RI. 2008), reveals that: (1) unlike Federal Rule of Evidence 609(a), Rhode Island's counterpart allows for impeachment through evidence of convictions for misdemeanor crimes not involving dishonesty or false statement; and (2) unlike Federal Rule of Evidence 609(b), Rhode Island Rule of Evidence 609(b) does not flip the Rule 403 balancing test for convictions that are more than ten years old.
In Gillespie, Clyde Gillespie appealed his convictions for the second-degree murder of Betty Sue Woods and for failing to report a death with the intention of concealing a crime. After he was convicted, Gillespie appealed, claiming, inter alia, that the trial judge improperly refused to allow him to impeach Betty Sue's sister, Estelle, a witness for the prosecution, through evidence of her 1989 conviction for loitering for indecent purposes.
If Gillespie's case were being heard under the Federal Rules of Evidence, his claim would have been completely without merit because loitering for indecent purposes is a misdemeanor crime under G.L. 1956 Section 11-34-8 in that it is only punishable by "imprisonment for a term of not more than one year, or a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or both." And under Federal Rule of Evidence 609(a), witnesses can only be impeached through (1) felony convictions, or (2) felony or misdemeanor convictions for crimes involving dishonesty or false statement. Because Estelle's conviction was a misdemeanor and not for a crime involving dishonesty or false statement, it would have been per se inadmissible under the Federal Rules.
Conversely, under Rhode Island Rule of Evidence 609,
"(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record. “Convicted of a crime” includes (1) pleas of guilty, (2) pleas of nolo contendere followed by a sentence (i.e. fine or imprisonment), whether or not suspended and (3) adjudications of guilt.
(b) Discretion. Evidence of a conviction under this rule is not admissible if the court determines that its prejudicial effect substantially outweighs the probative value of the conviction. If 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, or if the conviction is for a misdemeanor not involving dishonesty or false statement, the proponent of such evidence shall make an offer of proof out of the hearing of the jury so that the adverse party shall have a fair opportunity to contest the use of such evidence."
As the Rule clearly indicates, witnesses in Rhode Island may be impeached through misdemeanor convictions not involving dishonesty or false statement although an offer of proof must be made outside the hearing of the jury. As the Rule also makes clear, Rhode Island doesn't flip the Rule 403 balancing test for convictions that are more than ten years old. While under Rule 403 evidence is generally admissible as long as its probative value is not substantially outweighed by considerations such as the danger of unfair prejudice, Federal Rule of Evidence 609(b) states in relevant part 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."
As the text of Rhode Island Rule of Evidence 609(e) indicates, however, the same Rule 403 balancing test that applies to most evidence also applies to convictions that are more than ten years old and used for impeachment purposes. That is not to say, though, that the remoteness of a conviction is irrelevant in Rhode Island; instead, the remoteness of Estelle's conviction played in a key role in the Supreme Court of Rhode Island finding that the conviction was inadmissible for impeachment purposes, even under the regular Rule 403 balancing test.