Saturday, August 8, 2009
A Question Of Your Honesty: Supreme Court Of New Hampshire Finds That Receiving Stolen Property Is Not A Crime Of Dishonesty/False Statement
For the purpose of attacking the character for truthfulness of a witness,...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
A question that has divided courts across the country is whether a conviction for receiving stolen property/theft qualifies for admission as a crime of dishonesty and/or false statement under Federal Rule of Evidence 609(a)(2) and state counterparts. The most recent court to weigh in was the Supreme Court of New Hampshire in its recent opinion in State v. Holmes, 2009 WL 2366291 (N.H. 2009), in which it answered this question in the negative.
Friday, August 7, 2009
The Only Easy Day Was Yesterday: Former Navy SEAL Trainee First To Have Murder Conviction Erased By New Virginia Writ Of Actual Innocence Rule
The date was June 19, 1995. I had just graduated from First Colonial High School in Virginia Beach. Down the street from the school, Jennifer Evans, a 21 year-old premedical student from Georgia was being murdered outside a nightclub. Two friends and fellow Navy SEAL trainees, Billy Joe Brown and Dustin A. Turner, were eventually convicted of her murder. Years later, Brown converted to Christianity and admitted in a taped confession that he was Evans' sole killer, spontaneously choking her in a car parked outside a nightclub. That confession formed the basis for the Court of Appeals of Virginia, in Turner v. Commonwealth, 2009 WL 2369552 (Va.App. 2009), to grant Turner's petition for writ of actual innocence. Before 2004, however, Turner would have been out of luck.
Thursday, August 6, 2009
Stop Snitchin', The Aftermath: Maryland Case Might Be First To Apply State's Forfeiture By Wrongdoing Rule
Some readers might remember the infamous Stop Snitchin' DVD that surfaced on Baltimore's streets in 2004, featuring homegrown NBA player Carmelo Anthony and made to convince criminal informants to stop "snitching," or informing, to law enforcement, lest they face injury or death. What many likely do not know is that the DVD as well as numerous witnesses being murdered in Baltimore led Maryland to adopt Maryland Rule of Evience 5-804(b)(5), a counterpart to the federal forfeiture by wrongdoing rule. And now, the State may finally have an opportunity to use its new forfeiture rule.
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).
Tuesday, August 4, 2009
Bad Cops, Bad Cops: Tenth Circuit Questionably Affirms District Court Decision Limiting Cross-Examination Of Undercover Officer
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.
As I have noted several times on this blog (such as here), courts have generally applied this Rule and state counterparts liberally and admitted evidence of convictions even when they (in my opinion) really should not have. Meanwhile, in relevant part, Federal Rule of Evidence 608(b) provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
This begs the question: Have courts similarly been liberal in allowing cross-examination of witness regarding specific instances of (mis)conduct? I haven't read enough case law on the issue to reach a definitive conclusion, but if the recent opinion of the Tenth Circuit in United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. 2009), is representative, the answer would be "no."
Monday, August 3, 2009
Rescue 911: Oklahoma Appellate Court Reverses Murder Conviction Based Upon Confrontation Clause Violation
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana. I think that these latter two opinions explain the recent opinion of the Court of Criminal Appeals of Oklahoma in Hunt v. State, 2009 WL 2195422 (Okla.Crim.App. 2009), but that court only cited Crawford and did not cite either of these opinions, making its conclusion confusing.
Sunday, August 2, 2009
But It Was Harmless: Court Of Criminal Appeals of Tennessee Finds Erroneous Impeachment Ruling To Be Harmless Error
Tennessee Rule of Evidence 609(a)(3) provides 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:...
(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.
As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Johnson, 2009 WL 2226171 (Tenn.Crim.App. 2009), makes clear, drug convictions are generally inadmissible under this Rule. But, as that opinion also makes clear, even when trial courts erroneously admit evidence of such convictions, appellate courts often find that the error was harmless.