Saturday, December 26, 2009
Without Prejudice: Court Of Criminal Appeals Of Tennessee Finds Trial Court Improperly Failed To Weigh Prejudice In Felony Impeachment Ruling
Yesterday's post noted that Minnesota's "whole person" approach fails to take into account the particular probative value of a prior conviction. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hall, 2009 WL 4642585 (Ten.Crim.App. 2009), dealt with the opposite problem: a court failing to take into the particular prejudicial effect of a prior conviction.
In Hall, a jury convicted Charles Hall, of two counts of aggravated robbery, and the trial court sentenced him to life without parole as a repeat violent offender. Hall thereafter appealed, claiming, inter alia, that that the trial court erred in ruling that eight prior aggravated robbery convictions would be admissible should the he choose to testify.
The Court of Criminal Appeals of Tennessee noted that the issue was governed by Tennessee Rule of Evidence 609(a), which states that:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:
(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.
With impeachment, probative value is directly correlated to how much bearing the prior conviction has on witness (dis)honesty. Conversely, prejudicial effect is inversely correlated to how similar the prior conviction is to the crime charged. Why? The more similar the two, the more likely that the jury will misuse the prior conviction as propensity character evidence. Thus, in Hall, Hall's prior robbery convictions were highly prejudicial in his robbery trial because the jury likely would have used them to conclude, "Once a robber, always a robber."
The problem in Hall was that
[t]he trial court did not consider the similarity between the instant charge and the prior convictions when balancing probative value versus prejudicial effect....While crimes involving dishonesty are probative of the defendant's credibility, the probative value may not always outweigh the prejudicial effect. We conclude that the trial court erred in not considering whether the defendant's prior convictions were so similar that the jury might use the convictions as propensity evidence....
Nonetheless, the appellate court found that the prosecution presented overwhelming evidence of Hall's guilt and thus found harmless error and affirmed his conviction.