Saturday, March 14, 2009
Mississippi Mistake: Court Of Appeals Of Mississippi Misapplies Felony Conviction Impeachment Rule In Drug Appeal
The recent opinion of the Court of Appeals of Mississippi in Young v. State, 2009 WL 596660 (Miss.App. 2009), is the latest example of a court incorrectly applying the felony conviction impeachment rule.
In Young, Elliot Young appealed from his conviction on two counts of unlawful sale of cocaine to an undercover informant. That conviction came after the jury rejected Young's entrapment defense, which his attorney first raised in his opening statement when he made the remark that "these charges are preposterous, and it's a set-up situation and [Young] certainly did not sell cocaine to the confidential informant."
Before Young testified, he sought to preclude the prosecution from impeaching him through, inter alia, evidence that he had a prior felony conviction for possession of cocaine seven years before trial. The trial court rejected this argument, concluding that the conviction was admissible under Mississippi Rule of Evidence 609(a)(1), which states in relevant part that:
For the purpose of attacking the credibility of a witness,...evidence that...a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party
As I note in my article, Impeachable Offenses, courts generally consider five factors in making this determination:
(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.
The trial court applied these factors and found that:
the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There's a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant's favor-the third factor in Peterson, but the importance of the Defendant's testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great-it has probative value, and the prejudicial effort would be minimal, if any.
The Court of Appeals of Mississippi gave this decision the rubber stamp of approval, but it should not have. First, drug possession convictions are thought to have low impeachment value because they are "thought to have little necessary bearing on veracity." (and I don't see how the remarks in the opening statement change anything, given that the prior conviction was not for selling drugs). Second, a gap of seven years between prior conviction and present trial generally cuts against admissibility. See, e.g., People v. Lester, 432 N.W.2d 433, 435 (Mich.App. 1988). Third, because both the prior conviction and Young's present trial involved drug offenses, the prior conviction was extremely prejudicial. Fourth, the fact that Young's testimony was very important means that the approval of his prior conviction for impeachment purposes was prejudicial because it could have led Young to refrain from testifying. Only the court's analysis under factor five was correct. And clearly, when balancing these factors, the courts should have found that the prior conviction's probative value did not outweigh its prejudicial effect.