EvidenceProf Blog

Avoiding A Confrontation: Supreme Court Of Minnesota Notes That Co-Conspirator Admissions Aren't Testimonial

Similar to federal counterpart, Minnesota Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of the party. In order to have a coconspirator's declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

Meanwhile, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In State v. Larson, 2010 WL 3430866 (Minn. 2010), the defendant appealed from his murder conviction, claiming, inter alia, that the trial court erred in allowing the prosecutor to admit co-conspirator admissions made by available declarants who did not testify at his trial. The Supreme Court of Minnesota correctly disagreed.

In Larson, Robert Larson and his sister, Jamie, were convicted of murder in separate trials based upon their alleged killing of Jamie's boyfriend, Thomas John Cady, Jr.  At trial, the district court issued an order permitting the State to introduce testimony regarding discussions between Larson and Jamie and statements made by Jamie and Dan Iacarella, Robert's cousin, as substantive evidence on the grounds that it was co-conspirator nonhearsay. At trial, the prosecution called neither Jamie nor Iacarella to testify at Robert's trial despite both being available to testify.

After he was convicted, Robert appealed. Robert did not dispute that the subject statements constituted co-conspirator admissions, but he did contend that their admission violated his rights under the Confrontation Clause. The Supreme Court of Minnesota disagreed, finding that

For a statement to implicate the Confrontation Clause, it must be testimonial....We have explained that "statements made to non-government questioners who are not acting in concert with or as agents of the government are considered nontestimonial."...The co-conspirator statements introduced at Larson's trial arose in discussions amongst friends and acquaintances, not during police interrogations, and were not made for the purpose of establishing facts potentially relevant for a future criminal prosecution. These statements therefore are not testimonial and their admission does not implicate Larson's confrontation rights....Accordingly, we hold that the district court did not err in admitting these statements.

-CM

Undisputed: Court Of Appeals Of Tennessee Finds Statements Made During Court-Ordered ADR Covered By Rule 408

Like its federal counterpart, Tennessee Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering to furnish or (2) accepting or offering to accept a valuable consideration in compromising or attempting to compromise a claim, whether in the present litigation or related litigation, which claim was disputed or was reasonably expected to be disputed as to either validity or amount, is not admissible to prove liability for or invalidity of a civil claim or its amount or a criminal charge or its punishment. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence actually obtained during discovery merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution; however, a party may not be impeached by a prior inconsistent statement made in compromise negotiations.

So, does Rule 408 cover statements made during court-ordered ADR? According to the recent opinion of the Court of Appeals of Tennessee in Andrews v. Andrews, 2010 WL 3398826 (Tenn.Ct.App. 2010), the answer is "yes."

Andrews

is a divorce case. The plaintiff husband is a successful physician and the defendant wife is a stay-at-home mother. They have one minor child. After twelve years of marriage, the husband left the marital home and filed for divorce. The wife counter-claimed for divorce, and protracted and contentious litigation ensued. The initial trial judge appointed a guardian ad litem and an attorney ad litem. After several trial judges recused themselves, a senior judge was assigned. After nearly three years of dispute, the case proceeded to trial. The trial court granted a divorce to the wife; it found that she was economically disadvantaged but capable of partial rehabilitation, and that the husband had the ability to pay spousal support. The wife was awarded alimony in futuro, rehabilitative alimony, attorney fees as alimony in solido, and discretionary costs. The husband appeal[ed] the award of alimony, attorney fees, and costs.

The Court of Appeals of Tennessee ended up affirming the trial court's decision but not until after it noted an evidentiary error made by the trial court. According to the Court of Appeals, at one point, the guardian a litem "testified about her 'day-long' meetings with Wife, her lawyers, and the Son's therapist to mediate parenting disputes...." In response, the "Wife's attorney objected to the GAL's testimony based on Rule 408 of the Tennessee Rules of Evidence, excluding evidence related to settlement or compromise negotiations." The trial court overruled this objection, concluding, "I certainly don't think the conversation of the guardian ad litem falls under 408."

The Court of Appeals of Tennessee found that this ruling was erroneous, noting that "evidence of “conduct or statements made in the course of Rule 31 ADR Proceedings” is inadmissible. Tenn. R. Sup.Ct. 31, § 7 (referencing Rule 408)." Indeed, here is the text of Tenn. R. Sup.Ct. 31, § 7 :

Evidence of conduct or statements made in the course of Rule 31 ADR Proceedings and other proceedings conducted pursuant to an Order of Reference shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

-CM

What's My Purpose?: Opinion Reveals Criteria Washington Courts Use In Determining Whether Statements Are Testimonial

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

The Supreme Court, however, still has not clarified exactly what factors courts should consider in determining whether a statement is "testimonial." That has left lower courts to their own devices, and the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Cason, 2010 WL 3398522 (Wash.App. Div. 1 2010), reveals the criteria that Washington courts use to determine whether a statement is "testimonial."

In Cason, James Cason was convicted of assault in the second degree while armed with a deadly weapon. The victim of that crime was Portia Frazier, who had called 911 at 3:33 a.m. on May 22, 2007 and said that Cason was in her apartment, that she had asked him to leave but he refused, and that he was keeping her awake. Thereafter, "[t]wo more 911 calls were received from the same number at 3:43 a.m. and 3:44 a.m. In both calls, noise could be heard but nobody spoke." Later,

at 3:51 a.m. according to the video recording, while Officer Janes was waiting in his patrol car for backup to arrive, he saw Frazier stagger out of the front door of the building and lean against the wall. Her pants and shirt had blood on them. Officer Janes approached Frazier and observed cuts between two to five inches long on her face and neck, as well as apparent bruises on her face. Frazier had wounds on her hand, and her sweater was cut open. Officer Janes was concerned that Frazier's injuries might be life-threatening because she appeared to be bleeding profusely. He asked Frazier what was going on. Frazier said that she had been hit with a liquor bottle and, when asked the name of her assailant, responded, "James Cason." She said she did not know where Cason was or if he was still inside. During the exchange, Frazier was cradling her head, moaning, and rocking back and forth. She eventually slumped to the sidewalk. Within a few minutes additional police officers and the medics arrived at the scene. The officers who went inside the apartment building observed blood marks leading from the entryway to the elevator, on the elevator buttons, and down the third-floor hallway from the elevator to Frazier's apartment. The door of the apartment was ajar, and the apartment was in disarray. Couches and tables were turned over, broken bottles, glass, and lamps were on the floor, and there was blood on the wall and on the receiver of the telephone, which had been pulled out of the wall. No one was found inside the apartment, nor was anyone matching the description of James Cason found in or around the building.  

Frazier did not appear for trial despite being personally served with a subpoena, but Officer Janes testified about his encounter with her. After he was convicted, Frazier appealed, claiming, inter alia, that Frazier's statements were admitted in violation of his rights under the Confrontation Clause. In resolving this issue, the Court of Appeals of Washington, Division 1, had to decide whether her statements were "testimonial," and the court noted that

Washington courts have interpreted Davis as establishing the following criteria to determine if the primary purpose of an interrogation was to enable police assistance to meet an ongoing emergency, which would qualify the statements as non-testimonial:

(1) Was the speaker speaking about current events as they were actually occurring, requiring police assistance, or was he or she describing past events? The amount of time that has elapsed (if any) is relevant. (2) Would a "reasonable listener" conclude that the speaker was facing an ongoing emergency that required help? A plain call for help against a bona fide physical threat is a clear example where a reasonable listener would recognize that the speaker was facing such an emergency. (3) What was the nature of what was asked and answered? Do the questions and answers show, when viewed objectively, that the elicited statements were necessary to resolve the present emergency or do they show, instead, what had happened in the past? For example, a 911 operator's effort to establish the identity of an assailant's name so that officers might know whether they would be encountering a violent felon would indicate the elicited statements were nontestimonial. (4) What was the level of formality of the interrogation? The greater the formality, the more likely the statement was testimonial. For example, was the caller frantic and in an environment that was not tranquil or safe?

Applying these criteria, the court was easily able to find that Frazier's statements were non-testimonial, concluding that

In the instant case, an application of Davis ' analysis indicates that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, rather than to establish or prove past events potentially relevant to criminal prosecution. Frazier called 911 at 3:33 a.m. to report that James Cason refused to leave, and Officer Janes encountered her at 3:51 a.m. Frazier made the disputed statements to Officer Janes no more than 18 minutes after she made the 911 call, at which point she had not yet been assaulted. Under the first factor, very little time had elapsed since the assault itself. Under the second factor and third factor factors, a reasonable listener would have concluded that Frazier was facing an “ongoing emergency,” because she needed medical assistance and because Cason may still have posed a threat. When Officer Janes arrived, the assailant's whereabouts were unknown, and there was an ongoing need to find him, because he could have been nearby or in the building. The testimony of Officer James Stevens, who arrived as back-up to Officer Janes, indicates that the officers were dealing with a number of issues, including obtaining medical care for Frazier, getting assistance from other units, looking for the suspect, and investigating the scene for evidence. Under the circumstances, there was a significant need for information to resolve a present emergency. Officer Janes testified that he asked Frazier what the suspect looked like so that if he saw the suspect in or around the apartment building, he would know who to look for. Officer Janes was concerned that the suspect might come at him from out of the doorway, from up the alley, or from behind. As in Ohlson, one of the top priorities was to determine whether there was an ongoing danger to Frazier or to others. Finally, under the last factor, the interrogation of Frazier by Janes was not formal. According to Janes, Frazier was bleeding profusely, and the video recording depicts her in a dazed and seriously injured state. The situation was not tranquil or safe, moreover, where the assailant's whereabouts were unknown and he could return at any moment.

-CM

Where There's A Will(iam's): Florida Opinion Reveals Florida Counterpart To Federal Rule Of Evidence 414

Federal Rule of Evidence 414(a) provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

This Rule was created by the Violent Crime Control and Law Enforcement Act of 1994. Florida's counterpart to Rule 414(a) is section 90.404(2)(b)1, Florida Statutes, which provides that

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.  

And, as the recent opinion of the District Court of Appeal of Florida, Fifth District, in Arrascue v. State, 2010 WL 3359371 (Fla.App. 5 Dist. 2010), makes clear, Florida's rule was in place well before its federal counterpart.

In Arrascue, Luis Arrascue was convicted of two counts of lewd and lascivious molestation of a child. He thereafter appealed, and the appellate court noted that 

At trial in this case, the State had sought to introduce "William's Rule" evidence from another alleged child victim. The trial court ruled that the State could not use this evidence unless Arrascue “opened the door” to its admission through cross-examination of the victim. Yet, defense counsel could not get a definitive response from the trial court as to what cross-examination, if pursued, would open the door for admission of the State's proffered evidence. The trial judge indicated that he would need to hear the testimony to make that assessment. Rather than proffer the desired cross, and secure a definitive ruling, counsel simply elected to forgo his desired cross as to a number of topics.

Accordingly, the court found that

Because defense counsel did not proffer his cross-examination outside of the presence of the jury, we have no way of knowing how the trial court would have addressed the issue given questions that might (or might not) have been asked and responses that might (or might not) have been given. Additionally, we have no way to assess whether the contemplated cross-examination would have made any difference in the outcome....Although the record does contain some very generalized statements about the nature of the abandoned cross-examination, it does not contain enough information to permit meaningful appellate review as to this issue.

I agree with the court's ruling and have a couple of points to add. First, the "William's Rule" mentioned by the court comes from the Supreme Court of Florida's 1959 opinion in Williams v. State, 110 So.2d 654 (Fla. 1959), which allowed for the admission of evidence of a defendant's past act of sexual misconduct. Florida eventually codified that Rule in section 90.404(2)(b)1, Florida Statutes, and I find it somewhat odd that the court solely cited to "William's Rule" and not its codification.

Second, I find it odd that the trial judge found that the State could not use the "other act" evidence unless and until Arrascue engaged in a certain type of cross-examination of the victim. I don't see any requirement for such door opening in Williams or section 90.404(2)(b)1, and I don't see how vigorous cross-examination of the alleged victim in Arrascue would have increased the probative value of "other act" evidence.

-CM

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.

-CM  

Modern Hatfield & McCoy: Court Of Appeals Of Kentucky Notes Differences Between Rules 803(6) & (8) In Boundary Dispute

Like its federal counterpart, Kentucky Rule of Evidence 803(8) provides an exception to rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

And, like its federal counterpart, Kentucky Rule of Evidence 803(6) provides an exception to rule against hearsay for

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:

(A) Investigative reports by police and other law enforcement personnel;

(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and

(C) Factual findings offered by the government in criminal cases.

And, as the recent opinion of the Court of Appeals of Kentucky in Owens v. Davies, 2010 WL 3360453 (Ky.App. 2010), makes clear, the foundation requirements under Rule 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in Rule 803(6).

In Davies, Donald Owens, Sr., Donald Owens, Jr., and Judy Owens appealed from a judgment in favor of Samuel E. Davies, Linda G. Davies, Andreae Collins, Ella Collins, Eleanor Grace, and William Grace quieting title to a disputed boundary line. After the trial court found against them, the Owens appealed, claiming, inter alia, that the court erred by

admitting the record of a prior condemnation proceeding involving the properties because the evidence constituted hearsay and was admitted without a proper foundation. Citing KRE 902(4), the trial court admitted into evidence a certified copy of the record of a prior condemnation proceeding involving the properties at issue in this case on the grounds that the record was public. The Kentucky Transportation Cabinet had instituted condemnation proceedings against adjoining landowners Speed Campbell and Ashley Garland prior to the relocation of U.S. Highway 25E. Appellee, Samuel Davies, in his capacity as an attorney, represented both Campbell and Garland in the proceeding against the Commonwealth. The condemnation proceeding established a boundary point between the properties of Campbell and Garland where their properties adjoin U.S. Highway 25E.

Ostensibly, the Owens claimed on appeal that the appellees failed to lay a proper foundation for admission of the record of the prior condemnation hearing because no witness authenticated the record. The Court of Appeals of Kentucky disagreed, finding that

the foundation requirements under KRE 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in KRE 803(6)....KRE 803(8) does not require the testimony of a live witness to satisfy the foundation requirement....

We conclude the record of the prior condemnation proceeding involving the properties at issue was properly admitted as a public record. KRE 902(4) states in pertinent part: "An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by an official having the legal custody of the record." The Knox County Circuit Clerk certified the record and attested the record was a "true and correct copy." The trial court did not abuse its discretion by admitting the record of the prior condemnation proceeding.

-CM

That Was a Long Time Ago: Ohio Appellate Court Reverses Verdict Based Upon Improper Rule 609(B) Ruling

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.

And, as the recent opinion in Keaton v. Abbruzzese Bros., Inc., 2010 WL 3314342 (Ohio App. 10 Dist. 2010), makes clear, this is a difficult balancing test for parties to pass.

In Keaton, Mark A. Keaton appealed from a judgment entered upon a jury verdict in favor of  Abbruzzese Bros. Inc. and the Industrial Commission of Ohio, finding that Keaton was not entitled to participate in the state insurance fund for the condition of disc protrusion L5-S1. The facts in Keaton were undisputed: Keaton

was injured on October 7, 2004, in the course and scope of his employment with Abbruzzese, and a workers' compensation claim was allowed for multiple conditions. Thereafter, [Keaton] requested an additional allowance of "L5-S1 Disc Protrusion." In support of his request, [Keaton] relied on the medical report of Charles J. Kistler, D.O. The request for the additional claim was denied at all administrative levels; therefore, in accordance with R.C. 4123.512, [Keaton] filed an appeal with the Franklin County Court of Common Pleas.

In preparation for trial, Dr. Kistler's deposition was taken, at which time [Keaton]'s counsel objected to a line of questioning on cross-examination. A day prior to the jury trial conducted by a visiting judge, the assigned judge reviewed the deposition and overruled [Keaton]'s objections. The jury heard the evidence, and after deliberations rendered a verdict in favor of appellees finding [Keaton] was not entitled to the requested condition of L5-S1 disc protrusion.

The line of questioning dealt with Dr. Kistler's 1981 felony conviction for insurance fraud based upon his filing of false and inflated medical bills to an insurance company, and, after the jury found for the appellees, Keaton appealed this ruling. In addressing this issue, the court found that

pursuant to Evid.R. 609(B), evidence of Dr. Kistler's conviction was not admissible unless the trial court determined "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." "Generally, convictions over ten years old rarely should be admitted under Evid.R. 609(B), and only in exceptional circumstances."

The court then found that Dr. Kistler did not open the door to interrogation regarding his prior conviction and concluded that

Dr. Kistler was the only witness testifying in support of the requested claim for L5-S1 disc protrusion. The majority of Dr. Kistler's cross-examination concerned his prior conviction; yet, the prior conviction, which concerned billing procedures, was completely unrelated to Dr. Kistler's opinion pertaining to diagnosis and causation. The admission into evidence of Dr. Kistler's stale conviction, particularly its underlying details, could do nothing more than prejudice the minds of the jurors, and any probative value did not substantially outweigh its prejudicial effect. In fact, the details of the underlying criminal conviction would not be admissible even under an appropriate use of Evid.R. 609 that permitted the admission of evidence of the criminal conviction itself. Thus, overruling appellant's objection to the admission of testimony regarding Dr. Kistler's prior criminal conviction was an abuse of discretion.

Frankly, I think that the court overstated its vase. Sure, the conviction could have prejudiced the minds of jurors, but could it really do "nothing more" than that? Couldn't it also show that the jurors shouldn't necessarily trust his testimony based upon his prior fraudulent behavior? Moreover, wouldn't the fact that the prior conviction was unrelated to Dr. Kistler's opinion concerning diagnosis and causation reduce the prejudicial effect of the prior conviction? That's the way that most courts look at it, but not the court in Keaton. Now, the conviction was pretty old and Dr. Kistler's testimony was pretty important, so I probably agree with the court that probative value of the conviction did not substantially outweigh its prejudicial effect. It is the analysis of the court that I found problematic.

-CM