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

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Wednesday, January 13, 2010

Don't You Be Intimidated: Supreme Court Of New Hampshire Fails To Find Witness Intimidation Is Per Se A Crime Of Dishonesty Or False Statement Under Rule 609(a)(2)

Like its federal counterpartNew Hampshire Rule of Evidence 609(a)(2) provides that 

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 defendant is charged with four counts of the sale of a narcotic drug. Those drugs were sold to an individual cooperating with the government who later testified against the defendant at trial. The defendant thereafter sought to impeach the cooperating witness with evidence of his prior conviction for witness intimidation. Should the trial court have admitted this impeachment evidence under New Hampshire Rule of Evidence 609(a)(2)? That was the question faced by the Supreme Court of New Hampshire in its recent opinion in State v. Brown, 2009 WL 5150345 (N.H. 2009).

The facts in Brown were as listed above. The evidence of the cooperating individual's witness intimidation conviction was

a computer printout dated March 10, 2008, the day before the defendant's trial began....The document show[ed] that the convictions occurred in Massachusetts and lists various convictions, including witness intimidation. It d[id] not provide any information that identifie[d] the precise Massachusetts law that was violated, nor d[id] it give any information whatsoever about the elements of the crime or the criminal conduct that the cooperating individual committed.

The trial court precluded the defendant from using this evidence to impeach the cooperating individual, and the Supreme Court of New Hampshire later agreed, 

conclud[ing] that the document's generic reference to witness intimidation was insufficient for it to be "readily...determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness" as required under Rule 609(a)(2).

I disagree. Courts have found that certain crimes, such as subornation of perjury and larceny by trick, are per se crimes of dishonesty or false statement for Rule 609(a)(2) purposes. In State v. Delker, 666 P.2d 896, 898 (Wash.App. 1983), the Court of Appeals of Washington, Division 1, persuasively argued that witness intimidation falls into this category as well, concluding that

The gravamen of the offense of intimidating a witness is illegally attempting to change the testimony of that witness or prevent the witness from testifying at all. Thus, intimidation of a witness is very similar to subornation of perjury. It involves a direct interference with the court's fact-finding process and clearly involves dishonesty and false statement since the apparent purpose of intimidating a witness would be to cause false testimony or deny the court the benefit of the testimony altogether. A conviction for intimidating a witness bears directly upon the propensity of that defendant to testify truthfully.

I see the Supreme Court of New Hampshire's point that the defendant in Brown provided no information concerning the cooperating individual's conviction beyond the fact that it was a conviction for witness intimidation. At the same time, it seems clear to me that the New Hampshire Supremes could have inferred that this conviction must have involved the cooperating individual intimidating some prospective witness to prevent that witness from testifying at trial. And if the New Hampshire Supremes could have made that inference, I think that they should have found that this was a crime of dishonesty or false statement under New Hampshire Rule of Evidence 609(a)(2) pursuant to the reasoning in Delker.

(For what it's worth, I would guess that the cooperating individual was convicted under Massachusetts G.L. c.268, Section 13B, which provides that:

(1) Whoever, directly or indirectly, willfully

(a) threatens, or attempts or causes physical injury, emotional injury, economic injury or property damage to;

(b) conveys a gift, offer or promise of anything of value to; or

(c) misleads, intimidates or harasses another person who is:

(i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type;

(ii) a person who is or was aware of information, records, documents or objects that relate to a violation of a criminal statute, or a violation of conditions of probation, parole or bail;

(iii) a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer;

(iv) a person who is or was furthering a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; or

(v) a person who is or was attending or had made known his intention to attend a grand jury proceeding, trial or other criminal proceeding of any type with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type shall be punished by imprisonment for not more than 21/2 years in a jail or house of correction or not more than 10 years in a state prison, or by a fine of not less than $1,000 nor more than $5,000.)

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/01/witness-intimidation-609a2state-v-brown----a2d------2009-wl-5150345nh2009.html

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