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Univ. of South Carolina School of Law

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Sunday, November 15, 2009

Make Me Whole, Take 2: Court Of Appeals Of Minnesota Gets Impeachment Ruling Right, Other Rulings Wrong In Second-Degree Murder Appeal

Minnesota Rule of Evidence 609(a)(1) states,

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect. 

Previously on this blog, I have stated my displeasure with Minnesota's "whole person" approach to Rule 609(a)(1), under which Minnesota courts usually admit prior conviction evidence without much consideration of unfair prejudice under the theory that it permits the jury to see the "whole person" of the testifying witness. The recent opinion of the Court of Appeals of Minnesota in State v. Thelen, 2009 WL 3735430 (Minn.App. 2009), is the exception to that rule, and I agree with its Rule 609(a)(1). But other parts of the opinion give me pause.

In Thelen, Antonio Thelen was convicted of second-degree murder after a late-night shooting in which Thelen was the driver of a vehicle that intercepted another vehicle driven by the victim. A jury found Thelen guilty for shooting the victim after engaging in an altercation with him. The evidence at trial established that either Thelen or the passenger in his car shot the victim, and the main evidence supporting Thelen's conviction was (1) the testimony of the passenger indicating that Thelen shot the victim, and (2) the testimony of a police officer eyewitness who testified that the driver of Thelen's vehicle shot the victim and then got into the driver's seat and drove away from the murder scene.

Another piece of evidence supporting Thelen's conviction was his 1995 conviction for dangerous discharge of a firearm, which the prosecution admitted to impeach him. The district court admitted this conviction under the "whole person" approach to Rule 609(a)(1), but the Court of Appeals of Minnesota disagreed. According to the appellate court,

the key factor at issue here is...the similarity of the prior conviction to the present offense. The district court ruled that this factor favored admission; we disagree. As the identity of the person who shot [the victim] was the essential issue for the jury to decide and the evidence at trial limited the choice of the shooter to either [Thelen] or [his passenger-, any evidence suggesting that [Thelen] owned a gun or had a propensity to shoot a gun was highly prejudicial....Thus, even though [Thelen]'s prior conviction was somewhat dissimilar to the current offense because it did not involve shooting a person, the prior conviction could have suggested or indicated that [Thelen] had a familiarity with weapons and that he might have been in possession of a weapon or have a propensity to shoot a weapon.

Nonetheless, the appellate court did not reverse, finding that the district court's error in admitting the conviction was harmless because the verdict reached in this case was ‚Äúsurely unattributable to the error." The court reached this conclusion because

[a]t trial, the evidence establishe[d] that either [Thelen] or [his passenger] shot the victim. A police officer eyewitness testified that the driver of [Thelen]'s vehicle shot [the victim] and then got into the driver's seat and drove away from the murder scene. When [Thelen] testified, he admitted that he drove the vehicle when leaving the murder scene. In light of this evidence of [Thelen]'s guilt, any error in the admission of the prior conviction was harmless. 

Really? So, basically, the only strong evidence of Thelen's guilt was the eyewitness testimony of a single person (the passenger's testimony was obviously biased). And, as I have noted before, eyewitness testimony, and especially uncorroborated eyewitness testimony, has been found to be pretty unreliable. But wait a second; the appellate court also found that the district court did not err in precluding Thelen from calling Dr. Otto Maclin to testify as an expert on memory recall and the inaccuracy of eyewitness testimony. 

Instead, according to the Court of Appeals of Minnesota, under Minnesota Rule of Evidence 702, such testimony would not "assist the trier of fact to understand the evidence or to determine a fact in issue." Instead, according to the court, "jurors need to refer only to their own experience in evaluating the testimony of an eyewitness." Indeed, as the court noted, this is the majority rule in state courts across the country. But that doesn't make it right. Do courts really think that the average juror has an understanding of all of the studies showing the unreliability of eyewitness testimony? Do courts really think that jurors are aware of just how many inmates freed based upon DNA evidence were wrongfully convicted based upon inaccurate eyewitness testimony? It seems to me that courts would need to have a pretty high opinion of the average juror to exclude the opinion of experts in the area.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2009/11/609a1--state-v-thelennot-reported-in-nw2d-2009-wl-3735430minnapp2009.html

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