EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, October 9, 2010

Ten Years Have Got Behind You: Court Of Appeals Of Ohio Admits 14 Year-Old Assault Conviction Under Rule 609(B)

Like its federal counterpart, Ohio 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, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole 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 ten 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.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609 provides that

Although 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.

In its recent opinion in State v. Jones, 2010 WL 3839437 (Ohio App. 3 Dist. 2010), The Court of Appeals of Ohio, Third District, found that the prosecution properly impeached the defendant with his prior conviction that was more than ten years old. I disagree.

In Jones, Timothy A. Jones was convicted of felonious assault based upon an attack that he allegedly committed while he was in a correctional center awaiting trial on charges stemming from a separate incident. At trial, the prosecution impeached him through, inter alia, evidence of his 1986 conviction for felonious assault.

After he was convicted, Jones appealed, claiming, inter alia, that this impeachment was improper. The Court of Appeals of Ohio, Third District, disagreed, finding that

the record indicates that in conformity with Evid.R 609(B) the prosecution supplied Jones with ample written notice via multiple discovery-related filings that it intended to impeach Jones with convictions older than ten years giving Jones sufficient opportunity to contest the use of the evidence at trial.

After reviewing the record, we cannot conclude that the prosecution elicited testimony from Jones about his prior felony convictions other than for the permissible purpose of impeaching Jones' credibility. Further, we note that the assault giving rise to this case occurred between two inmates while residing in a correctional facility. Therefore, any prejudice to Jones concerning evidence of his prior felony convictions was lessened due to the fact that Jones was serving time in jail on a prior felony conviction at the time of trial. Accordingly, we do not find that the trial court abused its discretion in permitting the prosecution to cross-examine Jones about his prior felony convictions. Jones' third assignment of error is overruled.

Okay, so the prosecution provided notice, but did the probative value of the conviction substantially outweigh its prejudicial effect? The court's opinion didn't address the five factors courts usually use in making this determination, so I will address them in this post.

First, the conviction was for assault a crime of violence, so the conviction did not have much probative value on the issue of Jones' credibility as a witness, making the first factor cut against admission. Second, the conviction was about 14 years old, reducing the probative value of the conviction because Jones could have been rehabilitated. That said, Jones had continued conflict with the law as evidenced by his incarceration on other charges, meaning that he likely had not been rehabilitated, meaning that the second factor neither favored nor cut against admission.

Third, the crime underlying the prior conviction -- felonious assault -- was the same as the crime charged: felonious assault. This greatly increased the prejudicial effect of the prior conviction because of the fear that the jury would misuse the prior conviction as propensity character evidence rather than as impeachment evidence. Moreover, I don't see how the fact that Jones was already serving time in jail lessened the prejudicial effect of the conviction. If anything, I think it increased it. Thus, the third factor strongly cut against admission.

Fourth, Jones' testimony was extremely important in establishing who started the fight, and because Jones may have been wary of taking the witness stand if his prior conviction were deemed admissible (especially give factor three). Thus, the fourth factor cut against admission. That said, Jones' credibility was central to the determination of guilt or innocence because it was basically his word against the other inmate's word. Thus, the fifth factor favored admission, meaning that, as is usually the case, the fourth and fifth factors counterbalanced.

Thus, the way I see it, 3 factors favored inadmissibility, 1 factor was neutral, and 1 factor favored admissibility. Even if the court's analysis of these five factors was somewhat different, I don't see how the court could have found that the probative value of the conviction substantially outweighed its prejudicial effect. I thus think that the court's ruling was erroneous.



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