Tuesday, August 31, 2010
Keystone Case: Eastern District Of Pennsylvania Engages in Confusing Conviction Impeachment Analysis
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.
Now, take a look at the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Bellinger, 2010 WL 3364335 (E.D. Pa. 2010), and see if you think that the court made the right ruling under Rule 609(b).
In Bellinger, Edward Bellinger was charged with possession of a firearm by a convicted felon. At trial, the prosecution impeached him with evidence that he was previously convicted of robbery in 1989. After he was convicted, Bellinger claimed, inter alia, that he received ineffective assistance of counsel because his trial counsel failed to raise a motion in limine to preclude the admission of his prior conviction for impeachment purposes. In addressing this argument, the Eastern District of Pennsylvania noted that courts in the Third Circuit determine the admissibility of prior convictions for impeachment purposes with reference to four factors:
(1) [T]he kind of crime involved, (2) when the conviction occurred, (3) the importance of the witness' testimony to the case, and (4) the importance of the credibility of the defendant.
Here was the court's analysis of the issue under these factors:
Without getting into a lengthy retrospective analysis of the propriety of admitting the records at issue here-a decision made by the trial court at trial-the Court simply states that it believes that the factors weigh in favor of the admission of the evidence of the previous conviction. For instance, under the fourth factor-the most relevant factor in the present robbery context-a robbery conviction is the kind of conviction that courts find to be probative of a defendant's veracity....Thus, the fourth prong weighs strongly in favor of admission, which mitigates against the first factor, which weighs slightly against admission, due to the fact that robbery and gun possession are not identical crimes with identical elements. It is true that the under the second prong, the crime occurred more than ten years before the March 2005 trial on felony possession, and that under the [third] prong, Bellinger's testimony would have been of central importance to the case. Nevertheless, reviewing the four factors leads the Court to conclude that Defendant's prior robbery conviction was properly admitted under Rule 609(a)(1), and that defense counsel's strategic decision not to challenge the government's motion in limine was not unreasonable or in error.
Now, let's sort through this analysis. First, why did the court find that the conviction was admissible under Rule 609(a)(1)? According to the court itself, the conviction was more than ten years old. Assuming that the court meant that Bellinger was released from confinement more than ten years before his latest trial, the prior conviction could have only been admissible under Rule 609(b), meaning that it could have only been admissible if its probative value substantially outweighed its prejudicial effect. According to the court, though, factors one, two, and three cut against admission while only factor four supported admission. It is this difficult to see how the probative value substantially outweighed its prejudicial effect. Moreover, even if Rule 609(a)(1) applied, it is difficult to see how probative value outweighed prejudicial effect as is required by the Rule.
Moreover, it appears that the court confused the factors. Under factor one, the court was supposed to consider how much bearing the conviction had on the issue of Bellinger's credibility, but the court considered this under factor four. And, under this factor, the court was supposed to consider the similarity between the prior conviction and the present charge, with prejudicial effect increasing with similarity (based upon the fear that the jury might misuse the prior conviction as propensity character evidence). But, the court's analysis made it seem like probative value increases with similarity, which is incorrect. Under the fourth factor, the court was supposed to consider whether the defendant testified to a version of events that conflicted with the version of events described by witnesses for the prosecution. Instead, as noted, it focused upon the extent to which the robbery conviction bore on Bellinger's credibility. All in all, this was a strange opinion by the court and one that I do not think is defensible.