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October 20, 2009
Beast Of Burden: Court Of Appeals Of Michigan Seemingly Misapplies Rule 609(c) In Admitting Defendant's Prior Conviction For Impeachment Purposes
Michigan Rule of Evidence 609(c) provides 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.
Meanwhile, other portions of Michigan Rule of Evidence 609 allow for the admission of evidence of certain prior convictions that are no more than ten years old. So, what should happen in the following case? A defendant is on trial in 2006 and has a previous conviction from 1992 for armed robbery. Neither the prosecution nor the defendant presents any evidence regarding the date of the defendant's release from confinement imposed for that conviction. Under Michigan Rule of Evidence 609(c), should the conviction be inadmissible because the prosecution failed to prove that the conviction was no more than ten years old, or should the conviction be potentially admissible because the defendant failed to prove that the conviction was more than ten years old? In its recent opinion in People v. Watts, 2009 WL 3321511 (Mich.App. 2009), the Court of Appeals of Michigan chose the latter option. I disagree.
In Watts, the facts were as listed above, with Roosevelt Watts, Jr. facing charges of first-degree murder, possession of a firearm during the commission of a felony (felony-firearm), and being a felon in possession of a firearm. The trial court concluded that Watts' prior conviction was admissible concluding,
As to the age of the armed robbery conviction, the conviction took place in 1992 and the alleged offense in the instant case took place in 2006. Although almost 14 years had passed since defendant's conviction for armed robbery, MRE 609(c) prohibits a witness from being impeached with a conviction if more than 10 years have passed from the date of the conviction or from the date the witness was released from the confinement imposed for the conviction. Defendant did not establish that more than 10 years had passed since he was released from confinement for the armed robbery conviction. Thus, the prosecution was not prohibited on that basis from impeaching defendant with the armed robbery conviction. Further, although a significant amount of time had passed since the conviction itself, it was not so remote as to have no probative value.
After Watts was convicted, he appealed to the Court of Appeals of Michigan, which agreed with the trial court, finding that Watts' "prior armed robbery conviction satisfie[d] the time limit in MRE 609(c)."
My response: What!? The case that basically established the modern Rule 609 framework was United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976), in which the Seventh Circuit held, inter alia, that
In the future, to avoid the unnecessary raising of the issue of whether the judge has meaningfully invoked his discretion under Rule 609, we urge trial judges to make such determinations after a hearing on the record....The hearing need not be extensive. Bearing in mind that Rule 609 places the burden of proof on the government, Cong. Rec. 12254, 12257 (daily ed., December 18, 1974) (remarks of House conferees)..., the judge should require a brief recital by the government of the circumstances surrounding the admission of the evidence, and a statement of the date, nature and place of the conviction. The defendant should be permitted to rebut the government's presentation, pointing out to the court the possible prejudicial effect to the defendant if the evidence is admitted. (emphasis added).
In other words, it is well established that the burden is on the prosecution to establish all of the details necessary for a conviction to be admitted for impeachment purposes. And it is only when the prosecution has presented sufficient evidence that the defendant needs to rebut the government's presentation. It seems to me that the Michigan courts in Watts fundamentally misapplied MRE 609(c) by placing the burden on Watts and thus improperly admitted evidence of Watts' prior conviction.
October 20, 2009 | Permalink
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A fast look at the Michigan Corrections Department website shows Mr. Watts was sentenced in April of 1992 to a 2-year sentence for posssessing a gun, and thereafter to begin serving a consecutive 10-year minimum sentence for armed robbery, and other offenses. Dollars to donuts a staff law clerk at the Court of Appeals did what I just did, and found out that he was incarcerated within 10 years before the date of the alleged offense. Thus, Watts loses. It's called results-oriented jurisprudence, Micigan style. Get used to it. Those of us who practice in Michigan have to.
Posted by: Greg Jones | Oct 20, 2009 7:21:07 AM
Greg, thanks. I figured that Watts was released less than 10 years before the trial or else he would have presented evidence to the contrary. The more disturbing thing to me is the precedent set by the court in placing the burden on the defendant. This is not the first time that the Court of Appeals of Michigan has improperly placed the burden on the defendant in the Rule 609 context. See, e.g., People v. Steele, 32 N.W.2d 804, 806 (Mich.App. 1982). I doubt that it will be the last.
Posted by: Colin Miller | Oct 20, 2009 8:05:31 AM