Sunday, September 26, 2010
Federal Rule of Evidence 609(a)(1) provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) 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.
Most courts use a five factor analysis to determine whether convictions are admissible under this Rule. Sometimes, however, that analysis goes badly wrong as was the case with the recent opinion of the United States District Court for the Southern District of Illinois in United States v. Wooten, 2010 WL 3614922 (S.D. Ill. 2010).
In Wooten, Cortez Wooten was charged with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base. Before trial, he filed a motion in limine for an order prohibiting the government from impeaching him through evidence of his 1998 conviction for distribution of cocaine base (and through evidence of a 1996 conviction). In addressing this motion, the United States District Court for the Southern District of Illinois noted that it applies a five factor analysis.
The first factor is the nature of the crime leading to the prior conviction and how much bearing it has on witness credibility. According to the court,
in general, prior felonies have some probative value on the issue of credibility....Thus, should Wooten testify the Court finds that a jury has the right to be apprised of the 1998 conviction.
The second factor is the remoteness/freshness of the prior conviction, and the court found that
Regarding the time of the 1998 conviction, Wooten was released from prison on his original sentence in April 2008 which is within the 10-year time limit under Rule 609(b). Further, the instant offense in this case occurred on February 17, 2010 which is less than two years from Wooten's release from prison under his original sentence. Thus, the 1998 conviction is timely.
The second factor is the similarity between the prior conviction and the present charge, and the court found that
this factor weighs against admissibility. Wooten's prior 1998 conviction was for distribution of cocaine base; he is now charged with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base.
The fourth factor is the importance of the defendant's testimony and fifth factor is the centrality of the credibility issue. According to the court,
these factors weigh toward allowing the 1998 conviction into evidence, In the event that Wooten does testify, both Wooten's testimony and the credibility will be critical to the outcome of the case. The 1998 conviction need not come in unless Wooten testifies at trial that the testimony of the Government's witnesses was not true and correct. Thus, Wooten's credibility and testimony will be a key point of contention making his credibility a central issue.
The United States District Court for the Southern District of Illinois thus deemed the conviction admissible in the event that Wooten testified. My response: Of course it did. Federal Rule of Evidence 609(a)(1) covers felony convictions, i.e., convictions punishable by death or imprisonment in excess of one year. And, according to the court, the first factor favored admissibility because "prior felonies have some probative value on the issue of credibility." Well, of course they do, but how much probative value did this conviction have? The implication of the court's curt conclusion was that the first factor would always favor admissibility.
Under the second factor, the court found that the conviction was "timely" because Wooten was released from incarceration less than two years before the crime charged. True, but his prior conviction was almost ten years before that crime. It thus seems to me that the second factor was a wash at best.
The court noted that the third factor weighed against admissibility, but it didn't note how strongly it weighed against admissibility based upon the fear that the jury would misuse the prior conviction to conclude, "Once a drug dealer, always a drug dealer" (rather than to conclude that Wooten was lying under oath).
Overall, though, easily the biggest problem with the court's analysis was its discussion of the fourth and fifth factors. According to the court, these factors both favored admissibility because Wooten's testimony and credibility would be critical to the outcome of the case if he testified. You think? It's hard to think of a case where the defendant's testimony and credibility wouldn't be critical, meaning that the fourth and fifth factors would (almost) always favor admissibility if the court's analysis were correct.
Of course, its analysis was not correct. Under the fourth factor, when the defendant's testimony would be important, the fourth factor cuts against admission because of the fear that the defendant will invoke his Fifth Amendment privilege against self-incrimination and not testify if he knows that his prior conviction(s) will be admissible to impeach him in the event that he testifies. Now, in that same case, the defendant's credibility would be critical, meaning that the fifth factor would favor admissibility, which would mean that factors four and five would cancel each other out.
That should have left the court with factors one through three. And, under those factors, we had a nearly ten year old conviction with low probative value on the issue of witness credibility and high similarity to the crime charged. The court thus should easily have granted Wooten's motion in limine.