Wednesday, September 8, 2010
Make Me Whole, Take 6: Minnesota Judge Questions Validity Of Minnesota's "Whole Person" Impeachment Test
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony if not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, and here), Minnesota courts are not among these courts. But, as the recent opinion of the Court of Appeals of Minnesota in State v. Coleman, 2010 WL 3463597 (Minn.App. 2010), some Minnesota judges are starting to challenge the conventional thinking.
In Coleman, Lamart Coleman was charged with third-degree criminal sexual conduct. At trial, the judge permitted the prosecutor to impeach Coleman through his prior fifth-degree controlled-substance conviction through the following exchange:
Q Were you sometime in 2007 convicted of a marijuana drug charge here in Hennepin County?
Q And that was a charge you pled guilty to. I believe it was a marijuana sale charge; is that right?
Thereafter, at the end of trial, the judge gave the jury the following instruction:
Impeachment. In deciding the believability and weight to be given the testimony of a witness you may consider ... evidence that the witness has been convicted of a crime. You may consider whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth. In the case of the defendant you must be especially careful to consider any previous conviction only as it may affect the weight of the defendant's testimony. You must not consider any previous conviction as evidence of guilt of the offense for which the defendant is on trial.
After he was convicted, Coleman appealed, claiming that this impeachment was improper, prompting the Court of Appeals of Minnesota to conduct a five factor analysis, with the first factor being the impeachment value of the prior conviction. On this point, Coleman claimed "that his prior conviction of controlled-substance crime did not involve dishonesty and had little bearing on his veracity or honesty."
The problem for Coleman is that Minnesota courts don't actually care about the impeachment value of the prior conviction. Instead, Minnesota courts apply a "whole person" test under which any prior conviction is always viewed as having enough "impeachment" value to pass this factor because it allows the jury sees the witness' "whole person" and thus better assess his credibility. As many have before, Coleman attacked this "whole person" test, and as many have before, he failed. Instead, the majority reaffirmed the "whole person" test, meaning that he could be impeached without any showing that his prior conviction tended to show that he was untrustworthy.
Coleman did find a partial ally in concurring Judge Shumaker, who held that
Logically implicit in the authority for the admission of evidence of a prior conviction is the requirement that the crime is somehow plausibly related to the witness's capacity and disposition to tell the truth. If the nature of the prior crime or the manner of its commission does not reasonably shed some light on the question of credibility, I suggest that its admission is not within the purview of rule 609(a). Moreover, it presents the risk that the jury will then use the prior crime to draw a general negative character inference, namely, that the accused is a criminal who acted in conformity in the instant case with his criminal nature or propensity. Such an inference is expressly forbidden by Minn. R. Evid. 404(a).
I say that Judge Shumaker was only a "partial" ally because he concurred but did not dissent. This is because the judge found that it was logical for the trial court to conclude that a conviction for selling drugs does have some bearing on a witness' testimony. This makes it unlike, say, a conviction for assault, which might speak to his violent tendencies but not his tendency to be lie.