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Univ. of South Carolina School of Law

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Wednesday, February 17, 2010

Double Waiver: Eleventh Circuit Finds Defendant Waived Rule 609 Issue But That Government Waived The Issue Of Defendant's Waiver

Federal Rule of Evidence 609(b) 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, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

When a court does allow impeachment of a criminal defendant under this Rule, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's Rule 609 ruling by using such a technique. As the recent opinion of the Eleventh Circuit in United States v. Lewis, 2010 WL 438367 (11th Cir. 2000), makes clear, however, the government itself can waive the issue of the defendant's waiver.

In LewisWalter Lewis was convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine

Before trial the prosecution gave notice that, if Lewis chose to testify, it would impeach him with evidence of a thirteen-year-old state conviction for cocaine trafficking. The district court granted the government's motion in limine and admitted the conviction, finding that its probative value as impeachment evidence substantially outweighed its prejudicial impact....After losing the battle to keep out the evidence, Lewis made a tactical decision to lessen its impact by preemptively disclosing the prior conviction. Lewis took the stand and denied any involvement in the drug conspiracy. Asked on direct examination if he had ever been convicted of a felony, Lewis acknowledged that he had pleaded guilty to the state charge after he had been caught carrying some cocaine, which he claimed had been for personal use.

After he was convicted, Lewis appealed, claiming, inter alia, that the district court erred in deeming his conviction admissible for impeachment purposes in the event that he testified at trial. The Eleventh Circuit noted that Lewis waived his objection to the district court's ruling by having his attorney question him about his conviction during direct examination. But the court also found that "the government...itself waived the issue of Lewis's waiver by failing to raise it or even mention Ohler in its brief on appeal." Nonetheless, the Eleventh Circuit found that even if the district court erred, any error was harmless because

Lewis's credibility had already been thoroughly impeached by the testimony of witnesses that they had either sold cocaine to him or bought it from him on numerous occasions, by recorded conversations in which he could be heard discussing drug deals with a government informant, and by his own inability to offer a believable explanation for the large sums of cash police had found him with during two different traffic stops.  

(As a side note, it seems to me that the district court's ruling was almost certainly wrong. The Advisory Committee's Note to Rule 609 indicates that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." Considering the similarity between Lewis' prior conviction and the crime charged and the danger that the jury would misuse the prior conviction as propensity character evidence, this almost certainly was not an exceptional case.).

-CM 

http://lawprofessors.typepad.com/evidenceprof/2010/02/609bus-v-lewisslip-copy-2010-wl-438367ca11-fla2010.html

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