EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 5, 2009

Preemptive Strike: Eighth Circuit Finds Defendant's Testimony On Prior Convictions Waives Ability To Appeal

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403 , if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused 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 accused.

Obviously, it can be very damaging to a defendant if testifies during direct examination and then the prosecutor impeaches him through some prior conviction during cross-examination. It is easy to see how jurors would partially or entirely discredit what the defendant said based upon such impeachment. And that is why defense counsel will sometimes diminish the taint of such impeachment by eliciting such impeachment evidence from the defendant himself during cross-examination. The problem: such a tactic forecloses an appeal on the impeachment issue, as is made clear by the recent opinion of the Eighth Circuit in United States v. El-Alamin, 2009 WL 2366384 (8th Cir. 2009).

In El-AlaminMalik El-Alamin was convicted by a jury of possession with intent to distribute cocaine base and being a felon in possession of a firearm. Before trial, El-Alamin filed a motion in limine seeking to exclude any reference to his 1998 aggravated robbery conviction and 1997 drug conviction. The district court, however, denied that motion, and at trial, rather than allowing the prosecutor to impeach El-Alamin on cross-examination through these convictions, defense counsel had El-Alamin testify about the convictions during his own direct examination

After El-Alamin was convicted he appealed, claiming, inter alia, that the district court erred in deeming his prior convictions admissible for impeachment purposes. The problem: the Supreme Court's opinion in Ohler v. United States, 529 U.S. 753 (2000), which held "that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error." Applying this precedent, "the Eighth Circuit found that "By choosing to preemptively introduce the convictions, El-Alamin waived his right to appeal the trial court's denial of his motion in limine."

While the Eighth Circuit correctly followed this Supreme Court precedent, I wanted to note that the district court almost certainly acted incorrectly, at least with regard to the prior drug conviction. Drug convictions are thought to have low probative value for impeachment purposes, the conviction was about ten years old, and, while the opinion does not mention the specifics of the prior drug convictions, it seems likely that it was somewhat similar to the present charges against El-Alamin, ratcheting up its prejudicial effect. Given these factors, the district court almost certainly should have found that conviction inadmissible for impeachment purposes.



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