Sunday, May 23, 2010
Getting (Un)Lucky In Kentucky: Court Of Appeals of Kentucky Finds Trial Court Used Incorrect Standard For Rule 609(b) Impeachment
Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.
In Smith v. Commonwealth, 2010 WL 2010730 (Ky.App. 2010), the trial court had deemed the alleged victims' convictions that were more than ten years old inadmissible because they did not relate to the issues before the trial court. And as the Court of Appeals of Kentucky found, this was clearly erroneous.
In Smith, David Smith
agreed to sell farm equipment for Linda Tackett (Linda) and her husband Grayson. The agreement provided that the Tacketts would receive the first $50,000 of the proceeds from the sale, and Smith would receive any amount in excess of $50,000 as his commission. Smith ultimately gave the Tacketts four checks totaling $68,000, all of which were returned by the bank for insufficient funds. A grand jury indicted Smith and he went to trial in the summer of 2008.
Eventually, Smith was convicted of theft by failure to make required disposition of property valued at $300 or more. After he was convicted, Smith appealed, claiming, inter alia, that the trial court erred by precluding him from impeaching the Tacketts through evidence of their 1995 convictions for obstructing justice. The trial court had deemed these convictions inadmissible because they did not relate to the issues before the trial court.
The Court of Appeals of Kentucky noted that the issue was governed by the opinion in Holt v. Commonwealth, 250 S.W.3d 647 (Ky. 2008), in which the Supreme Court of Kentucky found that when balancing probative value against prejudicial effect under Rule 609, courts should consider:
1) whether the witness has placed his credibility in issue by testifying in contravention to other witnesses; 2) whether the prior conviction being offered for impeachment is probative of truthfulness; 3) whether the case is civil or criminal; and 4) the age of the conviction sought to be introduced.
According to the court, then,
Based on our review of the record, it appears that the trial court determined to exclude evidence of the Tacketts' felony convictions because those convictions were not related to the issues before the trial court. Therefore, Smith is correct that the trial court did not apply the Holt standard in evaluating the admissibility of evidence regarding the Tacketts' prior felony convictions.
Indeed, if a witness' prior conviction were related to the issues before the trial court, it would make the conviction less likely to be admissible for impeachment purposes (because the jury would be more likely to misuse it as propensity character evidence. Nonethless, the court still found that the Tacketts' prior convictions were inadmissible under Kentucky Rule of Evidence 609(b) and thus found that the trial court's error was harmless.