July 10, 2010
No Prior Knowledge: Supreme Court Of Arizona Finds Rule 407 Applies Even If Party Lacks Knowledge Of Prior Event
When, after an event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
But does the Rule apply even if the party took such measures without knowledge of, or for reasons unrelated to, a prior event? That was the question addressed by the recent opinion of the Supreme Court of Arizona in its recent opinion in Johnson v. State, Dept. of Transp., 2010 WL 2680379 (Ariz. 2010).
Johnson was a
wrongful death action [which] arose from a collision in which decedent Mark Johnson, while driving westbound on U.S. Highway 60, struck the rear end of a dump truck. Before the accident, the truck driver exited a mining pit, stopped at the Peckary Road intersection, and turned onto the highway. He traveled approximately seven hundred feet before decedent's vehicle hit his truck. An eyewitness stated the decedent made no attempt to stop, swerve, or slow down before the collision.
The decedent's surviving spouse, Kristen Johnson, thereafter brought an action against the State, alleging that it had negligently designed and maintained the Peckary Road intersection. At trial, Johnson sought to introduce evidence at trial that, after the accident, the State had posted a truck-crossing sign and allowed the mining company to install a variable message board near the Peckary Road intersection. She argued, inter alia, that those signs were not "subsequent remedial measures" under Rule 407 because the State installed them without knowledge of, and not in response to, the decedent's accident. The trial court, however, deemed this evidence inadmissible, and the jury subsequently returned a verdict in favor of the State.
Johnson thereafter moved for a new trial, claiming, inter alia, that Rule 407 does not apply when a party takes measures without knowledge of, or for reasons unrelated to, a prior event. The Supreme Court of Arizona initially noted that Rule 407 "seeks to 'encourage remedial measures by freeing the defendant from concern that such steps might be used against him as an admission by conduct.'" The court then found that
There is nothing inherent in the word "remedial," however, that presupposes knowledge of a prior accident by one undertaking repairs; a dangerous condition is remedied by subsequent measures even if the repairer is not aware that the condition has already caused an injury. Further, Rule 407 does not on its face require a causal relationship between the measures and the event, only that the measures were taken "after" the event and "would have made the event less likely to occur" if they had been taken before.
Moreover, the court found
unpersuasive Johnson's argument that the rule's policy of encouraging safety improvements is not furthered when defendants act without knowledge of the event in question and, thus, without awareness of their potential liability. Although defendants who improve safety without knowledge of previous accidents may not be deterred by the risk of liability to a particular claimant, they may nonetheless be deterred by the risk of potential liability to unknown claimants if subsequent measure evidence were routinely admitted when measures are taken without knowledge of previous injuries.
In sum, the Arizona Supremes found "that Rule 407 requires the exclusion of evidence of subsequent measures to prove a party's negligence or culpable conduct, even when such measures are taken without specific knowledge of the accident in question."
July 9, 2010
Grand Theft Auto: Court Of Appeals Of North Carolina Finds Car Pricing Guide Evidence Admissible Under Rule 803(17)
Back in 2008, I posted an entry about the United States Bankruptcy Court for the District of Maine finding that evidence from the Kelley Blue Book is admissible under Federal Rule of Evidence 803(17), which provides an exception to the rule against hearsay for
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
The recent opinion of the Court of Appeals of North Carolina in State v. Dallas, 2010 WL 2650394 (N.C.App. 2010), reveals that courts have reached the same conclusion with regard to evidence from the NADA pricing guide.
In Dallas, Christopher Allan Dallas appealed from his convictions of three counts of felony larceny of a motor vehicle, one count of misdemeanor larceny of a motor vehicle, and of being a habitual felon. Dallas' primary contention on appeal was that the trial court erred in admitting hearsay evidence as to the values of the stolen vehicles.
This evidence came from the Kelley Blue Book and the NADA pricing guide. With regard to the former evidence, the Court of Appeals of North Carolina found that it was admissible under North Carolina Rule of Evidence 803(17), which is identical to its federal counterpart. The court had no problem reaching this result because the Supreme Court of North Carolina had previously found in In re McLean Trucking Co., 189 S.E.2d 194, 203 (N.C. 1972), that evidence from the Kelley Blue Book qualifies for admission under this hearsay exception.
And while the court found no prior North Carolina precedent on the issue of whether evidence from the NADA pricing guide is admissible under Rule 803(17), the court noted that the prosecution's expert witness testified that NADA is "a national pricing guide" that he and others in the used car sales profession commonly use to price cars. Moreover, the court noted that
Other jurisdictions have held that NADA evidence is admissible under Rule 803(17). See, e.g., Hess v. Riedel-Hess, 153 Ohio App.3d 337, 345, 794 N.E.2d 96, 103 (2003) (holding that because "[t]he NADA handbook is a standard tool for determining the value of a vehicle[,]" trial court did not err in admitting into evidence NADA appraisal guide from NADAguides.com in order to establish value of vehicle under Rule 803(17)); State v. Batiste, 764 So.2d 1038, 1040 (La.App.2000) ("In our view, the NADA Blue Book, containing the relative commercial values of used vehicles, constitutes the exact type of publication contemplated by La.Code Evid. art. 803(17)."), cert. denied, 794 So.2d 778 (2001).
Therefore, according to the court, "In line with those jurisdictions, we also hold that NADA evidence was admissible in this case."
July 8, 2010
Essential Reading: Supreme Court Of Iowa Implies That Victim's Violent Character Is Essential To Self-Defense Claim
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
And under both Federal Rule of Evidence 404(a)(2) and Iowa Rule of Evidence 5.404(a)(2), a criminal defendant can present evidence of a pertinent character trait of the alleged victim. So, assume that a defendant is charged with domestic abuse assault and willful injury. And assume that the defendant claims self-defense. Is the alleged victim's character for violence an essential element of the defendant's defense, permitting him to prove the alleged victim's violence through specific instance evidence? According to the vast majority of courts, the answer is "no." The recent opinion of the Supreme Court of Iowa in State v. Cashen, 2010 WL 2629827 (Iowa 2010), however, strongly implies that the answer is "yes."
In Cashen, the facts were as stated above, with Ross Cashen being the defendant and Chastity Schulmeister being the alleged victim.
Cashen...employed a private investigator who acquired some of Schulmeister's mental health records from a medical office and a hospital. After the State learned Cashen had acquired these records, it filed a motion in limine to exclude the records, as well as other matters, from trial. The State also sought to preclude admission of Schulmeister's prior mental health history revealed in her deposition.
The district court denied the motion in limine. It found the mental health history of Schulmeister, specifically her propensities for violence and explosive behavior, was relevant to Cashen's defense of self-defense.
The state thereafter appealed this ruling, and the Supreme Court of Iowa found, inter alia, that the district court properly allowed defense counsel to inspect Schulmeister's mental health records. The court did not reach the issue of whether the information revealed in those records was admissible under Iowa Rule of Evidence 5.405(b).
In a dissenting opinion, Justice Cady found that
When the defense of self-defense is raised,...evidence of a victim's quarrelsome or violent disposition may become relevant to help establish the victim as the initial aggressor or the state of mind of the defendant....Such evidence of the victim's character may be introduced through testimony concerning the victim's reputation or by opinion testimony of a witness familiar with the victim. Iowa R. Evid. 5.405(a). It may also be shown by specific conduct. Iowa R. Evid. 5.405(b).
Justice Cady found, however, that defense counsel should not have had had access to Schulmeister's mental health records based upon her need for privacy. So, according to the district court and the dissenting opinion, in a self-defense case, the defendant can present evidence of specific conduct by the victim to prove her propensity for violence under Iowa Rule of Evidence 5.405(b).
I have noted before why such a position is wrong. An individual's character is only an "essential element of a charge, claim, or defense" under Rule 405(b) if, well, it is an essential element, i.e., if a party can only prove a charge, claim or defense by proving the individual's character. If a plaintiff sues a city after being struck by a city bus being driven by a drunk city employee, he might sue the city for negligent hiring. But, how would the plaintiff prove this negligent hiring claim? He would have to prove that there was something in the employee's past which should have made the city not hire him. So, if the employee had 3 DUIs before the city hired him, the plaintiff could present this evidence as character evidence because it would be essential for him to prove that the city was negligent in hiring the employee.
Conversely, in a self-defense case, it is not essential for the defendant to prove the victim's violent character. There can be eyewitnesses to the subject altercation. Defensive wounds on the defendant could show that he was acting in self-defense. The jury could believe the defendant's testimony that he was attacked. Jurors could disbelieve the victim's testimony. Evidence that the victim is a violent person can help a self-defense claim but it is not essential to it; even generally peaceable people can engage in acts of aggression. Indeed, Iowa courts have previously held that specific act evidence is inadmissible to prove the alleged victim's violent character is self-defense cases. See, e.g., State v. Hebeler, 2001 WL 736025 (Iowa.App. 2001).
July 7, 2010
This Is A Recording: Supreme Court Of Minnesota Answers Several Questions Regarding Admissibility Of Audio Recordings Under Rule 803(5)
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
In its recent opinion in State v. Stone, 2010 WL 2609430 (Minn. 2010), the Supreme Court of Minnesota answered two important questions regarding this recorded recollection rule and didn't have to answer a third.
D.B. live[d] in a house with A.J., his long-time girlfriend, their two minor children, and A.J.'s father, G.J. Shortly after midnight on April 23, 2007, D.B. heard loud knocking on the door of his house, followed by a request to use the telephone. In response, D.B. yelled that there was no telephone in the house, but the pounding increased and the door to the house began to give way. D.B. ran to wake G.J. while A.J. struggled to hold the door closed. When D.B. and G.J. returned, two shots were fired into the house; one shot struck G.J.
Immediately afterwards, the door caved in and two men entered the home. One man carried a gun and wore a bandana that covered his face, while the other, unmasked, man wore a stocking cap and carried a small, portable taser. The armed and masked man yelled at D.B. to "give it up." The unmasked man stood in the hallway with A.J. and G.J. A.J. then went into her bedroom and called the police. Meanwhile, the masked man led D.B. outside to D.B.'s car at gunpoint, where D.B. retrieved $450 in cash from the glove compartment. The masked man demanded more money from D.B., but D.B. turned out his pockets to show that he did not have any more money. The unmasked man also came outside and demanded that D.B. give them more money. When D.B. repeated that he did not have any more, the unmasked man shot him with the taser and the two men ran off into the woods.
When the police arrived in response to A.J.'s call, D.B. and A.J. identified the unmasked man, who they both knew by name, as Shane Scott Stone. G.J. made an audio-recorded statement to police, during which he described the details of the night's events. G.J. said in his statement that he got a good look at the unmasked man and provided a description that matched D.B.'s and A.J.'s identification of Stone. Approximately four hours later, the police discovered Stone hiding in underbrush less than one mile away from the home of D.B. and A.J. Within roughly one week, D.B., A.J., and G.J. identified Stone's picture in separate photo line-ups.
Stone was later indicted on one count of first-degree burglary and one count of aiding and abetting first-degree aggravated robbery. At trial,
G.J....was unable to recognize Stone in court. G.J. provided a detailed description of the intruder, but when asked if he got a good look at the unmasked intruder's face, he said, "No, he just appeared briefly and left." When asked about whether he had identified someone during a photo line-up, G.J. initially stated that he had not. But, G.J. recalled picking out a photograph after his memory was refreshed by looking at a document that he saw during the photo line-up. After G.J. testified that he did not get a good look at the assailant, the State attempted to refresh G.J.'s recollection by showing G.J. statements that he made during his police interview. The State subsequently asked G.J. if reviewing the statements refreshed his recollection as to whether G.J. had gotten a good look at the face of the unmasked man, to which G.J. responded, "I can't say for sure right now."
G.J. also had difficulty remembering details of the physical description of the unmasked intruder that he provided to the police, even after he was shown portions of a transcript of his audio-recorded statement. Following defense cross-examination, the State asked G.J. if he felt he had "sufficient recollection to testify fully and accurately about what happened that night" to which G.J. responded, "That's all I remember right now." G.J. agreed, however, that his audio-recorded statement to the police was "an accurate reproduction of the questions [that he was] asked and the answers that [he gave]." Over defense objection, the district court allowed the State to play the original audio recording of G.J.'s police interview as a recorded recollection under Minn. R. Evid. 803(5). The court relied on testimony about G.J.'s alcoholism, the State's failed attempts to refresh his recollection, and G.J.'s testimony that he had an insufficient recollection of the events.
The jury acquitted Stone of the burglary charge but found him guilty of the aiding and abetting charged. He thereafter appealed, claiming that the trial court made three errors under Minnesota Rule of Evidence 803(5) in playing the audio recording.
First, Stone argued "that G.J.'s audio-recorded statement [wa]s not a 'memorandum or record' because the plain language of Rule 803(5) only encompasses written documents." The Supreme Court of Minnesota, however, found that Stone failed to preserve the issue for appellate review. Even if the court had addressed this issue, I think that it would have found against Stone based upon precedent such as a recent opinion of the Court of Appeals of North Carolina, which I posted about here. For what it's worth, though, I'm not sure that I agree with these opinion because the last sentence of Rule 803(5) provides that "the memorandum or record may be read into evidence..." Even if an audio recording is a "memorandum" or "record," how can it be read into evidence? And, of course, the recording in Stone was played for the jury, not read into evidence.
But this argument is of no moment because Stone failed to preserve the issue for appeal. Stone did, however, preserve his argument that "the State failed to prove that G.J. had an insufficient recollection to testify fully and accurately at trial because G.J. recalled several details of the crime when he testified and he never claimed to be unable to recall the events surrounding the robbery." The court, however, was easily able to dispatch with this argument, noting that it is clear from the plain language of Rule 803(5) and precedent from across the country that the proponent of a recorded recollection merely needs to show that the memory of the witness was insufficient to testify fully and accurately, not that the witness was unable to recall any details of the event at issue. The court found that the record clearly established that G.J. has insufficient memory even though he clearly recalled some details about the robbery, meaning that the prosecution satisfied its burden in this regard.
Third, Stone argued that the prosecution failed to comply with the requirement that the audio recording be "made or adopted by the witness" because the police officer who recorded the statement did not testify. The Supreme Court of Minnesota noted that some courts had required testimony both by the eyewitness and the police officer recording the statement, but it concluded:
We think the multi-party situation described in the foregoing cases, in which both the recording police officer and the witness must testify regarding the accuracy of the record and the transcription, is limited to written transcripts and does not apply when a party is seeking to admit the actual audio recording itself....
We hold that for purposes of Minn. R. Evid. 803(5), G.J. “made” the audio recording when the event was fresh in his memory. Although G.J. is not the one who operated the machine that recorded the statement, there is no dispute that it is his voice or his statement reflecting the crime as he observed it. As the court of appeals said, it is undisputed that the audio recording accurately reflects what G.J. stated during the police interview....Here, because we hold that G.J. “made” the audio recording for purposes of Rule 803(5), we do not follow the line of cases that address the “adopted” standard in the context of multi-party situations, where the witness makes an oral statement and another party translates that statement into writing.
I agree with this point by the court, but I still question whether Rule 803(5) should apply to audio recordings.
State v. Stone
--- N.W.2d ----, 2010 WL 2609430
July 6, 2010
Designated Hitter: Supreme Court Of North Dakota Deems Pre-Sequestration Designation The "Better Practice" Under Rule 615
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's caused.
It is well established under both Federal Rule of Evidence 615 and state counterparts that the government's case agent can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But what if the government doesn't designate its case agent as its representative at the time that the defendant moves for sequestration? That was the question kind of answered by the Supreme Court of North Dakota in its recent opinion in State v. Wanner, 2010 WL 2598296 (N.D. 2010).
At the start of the trial, Wanner moved to sequester witnesses, and the trial court granted Wanner's motion. Lieutenant Shirey sat at the State's table during the first day of trial and prior to his own testimony. Wanner objected when Lieutenant Shirey was called to testify. After Lieutenant Shirey testified, Wanner argued the sequestration order should have prevented Lieutenant Shirey from testifying because he was present during other witnesses' testimony and the State failed to designate Lieutenant Shirey as its representative. Wanner requested a mistrial or a curative instruction to the jury. The State argued that under N.D.R .Ev. 615(ii), the trial court cannot exclude an officer because the rule allows the State to have a representative present. The trial court denied the motion for a mistrial and noted that the information Lieutenant Shirey heard was redundant and cumulative. The court stated, "I don't think that he's heard anything that anybody's surprised about, so I don't think there's any harm." The trial court also refused to give Wanner his proposed curative jury instruction on the grounds the State had not violated the sequestration order.
After he was convicted, Wanner appealed, claiming, inter alia, that the trial court erred in denying his motion for a mistrial. The Supreme Court of North Dakota noted that courts consistently have found that a case agent such as Lieutenant Shirey can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But the problem for the prosecution was that it did not timely designate Lieutenant Shirey as its representative. According to the court, "[a]lthough the rule does not mandate a formal designation of a representative at a particular time, we conclude the better practice is to designate a representative at the time a party moves for sequestration."
The North Dakota Supremes ultimately found, however, that there was no reason to reverse Wanner's conviction because he failed to prove prejudice. Specifically, the court found that
Wanner has not alleged that the other witnesses' testimony influenced Shirey's testimony, or that the testimony prevented Wanner from detecting falsities or credibility issues. Wanner has failed to show that Lieutenant Shirey's testimony was influenced by prior testimony he heard, or that Wanner was prejudiced by Lieutenant Shirey's testimony.
But would the court have ruled differently if Wanner could have proved prejudice? The court merely indicated that the "better practice" was for a party to designate a representative at the time that the opposing party moves for sequestration. So, it's the "better practice," but is it required? I guess that we will have to wait for a case involving prejudice for the full answer.
July 5, 2010
Real Life "Community": Judge Denies Mistrial After Juror's Abortionist Comment, Orders Defendant-Doc To Obtain GED
A doctor is charged with the murder of his ex-wife. His first trial ends when the jury deadlocked, with eleven members voting for acquittal and one for conviction. During voir dire of prospective jurors for the doctor's second murder trial, panel members are asked whether they could reach a decision based solely on the evidence. One juror responds, "Every man is entitled to a fair trial, but when [the doctor] left here he became an abortionist." Defense counsel moves for a mistrial, but the trial court denies the motion. The jury finds the doctor guilty of manslaughter, and the trial court sentences him to 20 years in prison and orders him to pay a $10,000 fine and obtain a GED. Did the trial court act correctly? This was the question faced by the Supreme Court of Mississippi in its recent opinion in DeHenre v. State, 2010 WL 2609458 (Miss. 2010), possibly the weirdest case I've ever seen.
The facts in DeHenre were as stated above, with Dr. Malachy DeHenre being the defendant, Dr. Nyasha DeHenre being his ex-wife, and Malachy claiming that Nyasha committed suicide. After the prospective juror made the aforementioned comment and defense counsel moved for a mistrial,
The trial court promptly removed the juror and then addressed the remaining panel members.
THE COURT: ... Can all of you tell me now that whatever this person who obviously was-I don't know what her purpose was. I have no idea. But that was the most outrageous thing that I've seen in a long time in a courtroom. Can all of you tell me that you will put that aside?"
JURORS: Yes, sir.
THE COURT: I don't know whether you people come up here-we have come here today, this is a place where people come for justice. We don't come here to make acquisitions [sic] and make statements. I'm sure that that person, her purpose for doing that was to try to prejudice you in some way. But can all of you tell me at this time that you can put that aside[?]"
JURORS: Yes, sir.
THE COURT: Is there anyone here who can't put that aside?
[DEHENRE]: Your Honor-
Later, during DeHenre's voir-dire examination, panel members indicated once again that they could put the abortionist comment aside and would not let it affect their decision.
After DeHenre was convicted, he appealed, claiming, inter alia, that the trial court should have declared a mistrial. His appeal eventually reached the Supreme Court of Mississippi, which noted:
We are unable to find another case directly on point. But this is not our first case involving misconduct by venire members. In such cases, we generally have affirmed a trial court's refusal to declare a mistrial if prospective jurors gave some indication that an improper statement would not impede their ability to be fair.
The Mississippi Supremes did acknowledge that "[a]bortion is, without question, a highly contentious issue that incites strong passions among many people," a fact that made "the comment here perhaps more troublesome than those found in our prior cases." That said, the court concluded that
Despite the incendiary nature of abortion, we cannot say that the isolated comment with respect to DeHenre being an abortionist was so irreparably prejudicial as to warrant a mistrial....Immediately after this comment was made, the trial court removed that juror and twice asked the members of the jury pool whether they could put the comment aside. They responded affirmatively. DeHenre never requested individual voir dire. Later on, none of the jurors responded negatively when DeHenre's counsel asked the venire members three or four times if they could assure him that the abortionist comment would not weigh into their decision.
One justice wrote a strongly worded dissent, agreeing with the reasoning of the Fifth Circuit in United States v. Davis, 583 F.2d 190 (5th Cir. 1978), which cited with approval the American Bar Association's standards for the conduct of trial. Standard 15-2.4 for the conduct of jury trials reads in part:
(e) Jurors should be examined outside the presence of other jurors on sensitive matters or prior exposure to potentially prejudicial material.
(1) Sensitive matters are those matters which might be potentially embarrassing or intrusive into the juror's private life, feelings or beliefs, or those matters which if discussed in the presence of the jury panel, might prejudice or influence the panel by exposing other potential jurors to improper information.
(2) Examination of the prospective juror with respect to that juror's exposure to potentially prejudicial material should be conducted in accordance with ABA Standards for Criminal Justice relating to Fair Trial and Free Press.
The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised:
(a) If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure should take place outside the presence of other chosen and prospective jurors. An accurate record of this examination should be kept by a court reporter or tape recording whenever possible. The questioning should be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person's attitude toward the trial, not to convince the prospective juror that an inability to cast aside any preconceptions would be a dereliction of duty.
(b) Whenever prospective jurors have been exposed to potentially prejudicial material, the court should consider not only the jurors' subjective self-evaluation of their ability to remain impartial but also the objective nature of the material and the degree of exposure. The court should exercise extreme caution in qualifying a prospective juror who has either been exposed to highly prejudicial material or retained a recollection of any prejudicial material.
Accordingly, the dissenting justice found that the procedure used by the trial court was constitutionally deficient and would have reversed and remanded for a new trial. I definitely agree with the dissenting justice given the facts of the case.
But what about the GED? In a footnote in the majority opinion, the court noted that
A general educational development degree (GED) is the equivalent of a high school diploma. DeHenre is a physician, and the record provides no insight as to why the trial judge thought DeHenre needed a GED.
Unfortunately, this is the only portion of the opinion where the Mississippi Supremes mention the fact that the trial court sentenced him to obtain a GED, so we don't know what happened. Was it a situation like on NBC's "Community," in which attorney Jeff Winger was ordered to go to community college after the State Bar deemed his college degree invalid? Did Malachy use poor grammar during trial, leading the judge to think he needed to brush up on his basics? Or is the sentence evidence that the juror's comment about Malachy had a prejudicial effect on the judge as well as the jurors? Barring a habeas petition, we may never know.
July 4, 2010
Balancing Act: Court Of Appeals Of Iowa Uses Incorrect Reasoning In Upholding Trial Court's Impeachment Ruling
For the purpose of attacking the credibility of a witness:(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to 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.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Based upon the interplay between these two rules, it is clear that the Court of Appeals of Iowa erred in its reasoning in its recent opinion in State v. Rose, 2010 WL 2598370 (Iowa.App. 2010), even though it might have reached the correct conclusion.
Brittany Pladna left her two-year-old son with Sandy Rose. Sandy is the aunt of Johnathan Rose (Rose), who is the father of Pladna's son. Pladna and Rose were not on speaking terms on the date of this incident. Pladna returned with her sister Danielle and her friend Dymetri to Sandy's house to pick up her son. When she arrived at Sandy's house, Pladna found Rose's sister Krystal holding her son near Rose's mother, Monica, who was sitting in her car. This angered Pladna because she did not get along with Krystal or Monica.
Pladna exchanged heated words with Monica and Krystal and approached Krystal to retrieve her son. Seven individuals witnessed the events that followed, but their stories are inconsistent. However, it is clear from the record that at some point, Rose became involved in the fray. Pladna either fell or was knocked to the ground by Rose. Rose was charged with domestic abuse assault against Pladna. He claimed he acted with justification in that he acted to protect another person, his sister Krystal, from the use of unlawful force.
At trial, Rose sought to impeach Pladna through evidence concerning her felony conviction for child endangerment, which resulted from her son having tested positive for illegal drugs. After he was convicted, Rose appealed, claiming that the district court erred by precluding him from impeaching Pladna through evidence of this conviction.
In response, the Court of Appeals of Iowa noted that
Our supreme court has advised trial courts to assess the probative value of admitting evidence of a prior conviction in relation to its likely prejudice by considering four non-exclusive factors: (1) the nature of the conviction; (2) the conviction's bearing on veracity; (3) the age of the conviction; and (4) its tendency to improperly influence the jury.
The Court of Appeals then rejected Rose's appeal, finding that
Rose sought to impeach Pladna with her 2007 conviction for child endangerment, a crime punishable by imprisonment in excess of one year. Rose argues on appeal that this evidence should have been admitted because it suggests that Pladna was not a credible witness and because it supports his assertion that Pladna was the aggressor in this incident, a disputed fact vital to his claim of justification. The child endangerment conviction stemmed from an incident in which Pladna's child tested positive for drugs. The district court properly weighed this evidence and determined that the nature of the crime of child endangerment had little bearing on the assault case in which the parties were involved, was not probative of veracity, and had a high tendency to improperly influence the jury. Although Pladna's conviction was fairly recent, the district court acted well within the range of its discretion in ruling that any probative value on credibility did not outweigh its tendency to confuse or inflame the jury. Admission of this evidence had a high propensity to lead to confusion of the issues, mislead the jury, or result in unfair prejudice. The nature of the conviction could lead the jury to consider whether Pladna was a fit parent and distract them from the real issue of whether the domestic abuse occurred. Evidence that Pladna's child had been exposed to a controlled substance could be highly prejudicial to her.
Let's start with the court's conclusion that "the district court acted well within the range of its discretion in ruling that any probative value on credibility did not outweigh its tendency to confuse or inflame the jury." That's the wrong standard. As noted, Iowa Rule of Evidence 5.403 provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
In other words, the court could not have excluded Pladna's conviction by finding that its probative value failed to outweigh its tendency to confuse or inflame the jury. It only could have excluded it if it found its probative value was substantially outweighed by its tendency to confuse or inflame the jury.
Second, let's look at the four factors mentioned by the court. First, I don't see why the court found that the fact that the conviction had little bearing cut against admission. It is well established that if a prior conviction is similar to the crime charged, that cuts against admissibility because the jury could misuse the conviction as propensity character evidence. Second, the court was right that a conviction for child endangerment based on a child testing positive for drugs has little bearing on credibility as a witness. Third, the court correctly found that the conviction was fairly recent, cutting in favor of admissibility.
Fourth, I don't get the point about the prior conviction leading the jury to consider whether Pladna was a fit parent and distracting from the issue of whether domestic abuse occurred. Undoubtedly, this is true, but it would be true for any conviction. If Pladna had a prior conviction for drug use, the jury might be confused and wonder whether she was a drug addict. If she had a prior conviction for robbery, the jury might be confused and wonder whether she was a robber.
Looking at the facts, I think that the district court was likely right in excluding Pladna's conviction, but the analysis employed by the Court of Appeals of Iowa sure leaves something to be desired.