EvidenceProf Blog

Liar, Liar: Supreme Court Of Delaware Finds Witness With Prior Convictions For Crimes Of Dishonesty Was Properly Allowed To Testify

A defendant is on trial for one count each of second degree assault and possession of a deadly weapon during the commission of a felony. A potential witness for the prosecution has several prior convictions for crimes of dishonesty or false statement. Should that witness be allowed to testify against the defendant. As the recent opinion of the Supreme Court of Delaware in Branch v. State, 2010 WL 3756812 (Del.Supr. 2010), makes clear, the answer is "yes." In days past, however, this wasn't always the case.

In Branch, the facts were as stated above, with John Branch being convicted of the crimes charged after the trial court received the testimony of Michele Petrucci. After he was convicted, Branch appealed, claiming, inter alia, that "the trial judge erred in allowing Michele Petrucci to testify at all in light of her prior convictions for acts of dishonesty." The Supreme Court of Delaware easily rejected this argument, finding that 

Despite Branch's contention,...there is no rule in Delaware that prohibits a person convicted of crimes of dishonesty from testifying as a witness at trial. Instead, the witness' testimony may be impeached by such prior acts of dishonesty, and the Superior Court permitted defense counsel to cross-examine Petrucci about her prior convictions in this case. These prior convictions went to the weight of Petrucci's testimony, not its admissibility, and the weight to be accorded her testimony in light of her prior convictions was a matter for the jury to decide.

This is indeed the way that courts treat witnesses with prior convictions for crimes of dishonesty or false statement, but this wasn't always the case. Instead, under the common law, courts applied a patchwork of rules deeming certain groups of individuals incompetent to testify at trial, including:  felons (and those convicted of crimes of dishonesty of false statement) under the doctrine of infamy; spouses under the doctrine of coverture; and atheists on the grounds of irreligion.  These rules were meant to ensure that juries would base their verdicts on truthful evidence and to protect the souls of those who might otherwise be tempted to commit the mortal sin of perjury.

Those rules, however, eventually fell by the wayside, with courts finding it better to allow most witnesses to testify, subject to impeachment. As Federal Rule of Evidence 601 and most state counterparts (such as Delaware Rule of Evidence 601) now provide in relevant part: "Every person is competent to be a witness except as otherwise provided in these rules." And, as the Advisory Committee's Note to Rule 601 makes clear,

This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person.

-CM

Superman Didn't Become Superman: Tennessee Court Finds Evidence That Defendant Bought And Wore Superman Shirt Admissible

A defendant is charged with facilitation of first degree murder and the defendant claims as part of his defense that he was "surprised" and "scared" after the subject shooting. If the defendant brags to his friends about the shooting, it is indisputable that the defendant's words could be used against him to rebut his defense and prove his intent. But what about if the defendant purchased and wore a Superman shirt after the shooting. Should such evidence be similarly admissible? I don't think so. In its recent opinion in State c. Garcia, 2010 WL 3766942 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee disagreed.

In Garcia, nineteen-year-old Orlando Garcia and his childhood friend, Alejandro Gauna, both residents of Austin, Texas, purchased marijuana in Texas, transported it to Tennessee, and planned to sell the drugs for a profit. While Garcia was driving in Tennessee with the drugs in his car, he

was speeding, and Trooper Jenks proceeded to initiate a traffic stop. According to the defendant, he initially considered trying to outrun the officer because he knew there were marijuana and weapons in the car. Moreover, the defendant had lost his driver's license during the trip. Gauna asked the defendant what he wanted to do, and the defendant replied, "Let's see what happens." The defendant stopped the car on the side of the road. Trooper Jenks approached the car and was informed that the defendant had no license. At this point, he requested that the defendant exit the car and proceed to the rear of the vehicle. While there, Trooper Jenks told the defendant that he smelled marijuana and asked if there were drugs or weapons in the car. After initially denying the presence of either, the defendant, in response to the trooper's further questioning and urging to "do this the easy way," eventually informed the trooper that there was a blunt in the center console. When Trooper Jenks proceeded to the driver's side door and leaned into the car, Gauna shot him twice in the head. Gauna began yelling for the defendant to "Get him out. Get him out." The defendant then walked to the driver's side of the car, pulled the trooper's body from the car, and tossed it onto the roadway. The two men then sped off in the rental car. These events were all captured on video by Trooper Jenks' in-car camera, which activated when he turned on the blue lights. 

Thereafter,

the defendant and Gauna had gone to a local convenience store where Gauna entered and asked if they had Armor All wipes. Upon learning that they did not, he requested driving directions to the local Walmart. Video surveillance of the Walmart parking lot shows them driving into the parking lot and shows Gauna entering the store where he purchased the wipes. The two men then proceeded to use the wipes to clean inside of the car and to throw away two empty shells, as well as Trooper Jenks' flashlight. The defendant entered the store and purchased a shirt with a Superman logo on it. He then changed into the new shirt in the restroom and disposed of his blood-stained shirt in the trash. Gauna also entered the store and purchased new clothing. Surveillance video captured both men exiting the store, returning to the car, and leaving the parking lot.

Garcia and Gauna were later apprehended, and Garcia was eventually charged with facilitation of first degree murder and possession of a Schedule VI controlled substance with intent to deliver. As part of his defense, Garcia claimed that he did not intend for Gauna to shoot the trooper and that "he was 'surprised' and 'scared' after the shooting but...too scared to say anything or turn Gauna in to law enforcement."

At trial, the prosecution rebutted this defense with, inter alia, evidence that Garcia purchased and wore a Superman shirt soon after the shooting. Garcia did not object to this evidence on appeal, but, after he was convicted, he claimed on appeal that

the fact that the jury was allowed to hear that he purchased and wore this Superman shirt and the State's references to the shirt in closing suggests decision on an improper basis and were "clearly designed to appeal to the jury's basest instincts." He further argues that "[t]he shirt cast the Defendant as a cop-killer with a sense of invulnerability and power, inviting the jury to speculate as to the character of the Defendant.”" He continues that "[t]he evidence of the Superman logo shirt was immaterial, unfairly prejudicial and should have been excluded from evidence."

The Court of Criminal Appeals of Tennessee 

disagree[d] with his assertion that the fact that the defendant entered Walmart and purchased a Superman shirt is not relevant to any issue before the jury. As pointed out by the State, it could certainly been seen as going to the defendant's intent with regard to the crime. There is no dispute that a defendant's actions after committing a crime are relevant for the purposes of proving intent....The State bore the burden in this case of negating the defendant's statement that he was "surprised" and "scared" following the shooting. The fact that he purchased this particular shirt, along with his subsequent actions, could support an inference to the contrary. The State likens the defendant's choice of shirt in this case to a defendant's braggadocio to his friends regarding his criminal exploits, which has previously been held relevant to show intent....As pointed out by the defendant, the shirt suggested "a sense of invulnerability," which would definitely belie his assertions of surprise and fright which he placed before the jury.

Or maybe the shirt was a security blanket (like Superman's actual outfit) that he used to cover up his fear. Or maybe Garcia was one of the few people who like Bryan Singer's "Superman Returns," which is why he bought and worse the shirt. Maybe he had recently seen the Donner Cut of "Superman II." Maybe there was a good episode of "Smallville" on the previous night.

I think you get my point. If a defendant brags about a shooting, that's fairly probative of his state of mind regarding the shooting. If a defendant buys and wears a Superman shirt after a shooting, that could be probative on the issue of whether the thinks he's a Man of Steel, but it could also be probative of a million other things, meaning that I think that the court should have found the evidence inadmissible.

-CM

You're Out Of Your Element: Eighth Circuit Finds Statement Concerning Matter Outside Scope Of Employment Not An Employee Admission

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....

The problem for the plaintiffs in the recent opinion of the Eighth Circuit in E.E.O.C. v. Con-Way Freight, Inc., 2010 WL 3655999 (8th Cir. 2010), was that while they had a statement by an employee of the defendant which potentially helped their case, they could not prove that the statement concerned a matter within the scope of his employment.

In Con-Way Freight,

The EEOC filed [an] action claiming that Con-Way failed to hire [Roberta] Hollins because of her race in violation of Title VII of the Civil Rights Act of 1964....After the court allowed Ms. Hollins to intervene, she added claims of race discrimination in violation of 42 U.S.C. § 1981 and Missouri state law.

Con-Way thereafter brought a motion for summary judgment dismissing the complaint, claiming, inter alia, that Hollins would not have been hired regardless of any discriminatory animus because she has two misdemeanor theft convictions and Con-Way has a policy of automatically disqualifying applicants with theft -related convictions.

The plaintiffs countered that when Hollins interviewed with Con-Way's Poplar Bluff branch service center manager, Kenneth Gaffney, she told him about her prior convictions and he responded that she should not worry about the misdemeanor convictions because Con-Way "won't go back that far" anyway. The plaintiffs claimed that this statement established that Con-Way did not have such a policy. The district court, however, deemed this statement inadmissible hearsay and granted Con-Way's motion for summary judgment.

The plaintiffs thereafter appealed, claiming, inter alia, that Gaffney's statement constituted an employee admission under Federal Rule of Evidence 801(d)(2)(D). The Eighth Circuit disagreed, finding that

We have held that party admissions must concern a matter within the scope of employment of the person making the statement....Here, Mr. Gaffney testified that he was not involved in the criminal background checks and was not given specific reasons when the personnel department disqualified an applicant; we cannot, therefore, say that the district court abused its discretion in concluding that Mr. Gaffney's comment was outside the scope of his employment. Even if the statement were admissible, moreover, the same lack of knowledge that rendered it inadmissible would render it insufficient to allow a reasonable jury to infer that Con-Way did not have a policy of automatically disqualifying applicants with theft-related convictions.

-CM

Empty Formalism Is A Vacuum To Be Abhorred: Eighth Circuit Notes That Parties Don't Need To Renew Objections To Definitive In Limine Rulings

A party files a motion in limine seeking to have certain evidence deemed admissible at trial. The court makes a formal ruling deeming the evidence inadmissible at trial. The party objects to this ruling and makes an offer of proof. At trial, does the party need to renew its objection and again make an offer of proof? As the Eighth Circuit artfully put it in its recent opinion in Shelton v. Kennedy Funding, Inc., 2010 WL 3719065 (8th Cir. 2010), the answer used to be "yes" but now it is "no."

In Shelton, Virgil Shelton brought a breach of contract and fraud action against Kennedy Funding, Inc. (KFI) arising out of the sale of a cemetery in Arkansas. Before trial, KFI brought a motion in limine seeking a ruling that Michael Leighton be allowed to testify on its behalf. Leighton is a partner in a law firm, and his associate, Joseph Barbiere, entered an appearance for KFI, but withdrew his representation on the last business day before trial. KFI recognized that an attorney generally may not testify on behalf of a party in Arkansas when a member of his firm is representing that party. KFI argued, however, that this general rule was inapplicable because (1) Barbiere had a very limited role in the litigation and (2) the district court granted Barbiere leave to withdraw before trial commenced.

The trial court disagreed and issued a "definitive" ruling that Leighton could not testify on KFI's behalf. KFI objected to this ruling and made an offer of proof regarding Leighton's proposed testimony, but it did not renew this objection (and make another offer of proof) at trial. 

After the jury found for Shelton, KFI appealed, claiming that the court's ruling was improper, and the Eighth Circuit noted that if this case were heard before 200, KFI would not have preserved the issue for appellate review. This was because, a party needed to renew its objection (and make another offer of proof) if the trial judge ruled against it during a pre-trial motion in limine  "before the 2000 amendments to Fed.R.Evid. 103. See, e.g., Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 336-37 (8th Cir.1997) (holding that, notwithstanding obtaining a formal ruling on a motion in limine, a party's failure to make an offer of proof at trial waived any right to appellate review)."

Federal Rule of Evidence 103(a), however, was amended in 2000, and it now provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. 

And, as the Advisory Committee Note to the 2000 amendment makes clear,

The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.

The Eighth Circuit noted this language and agreed with it, finding that "[e]mpty formalism is a vacuum to abhorred." The court thus found that KFI preserved the issue for appellate review but found that even if the trial court's ruling was erroneous, it was harmless.

-CM 

Tell Me Lies: Court Of Appeals Of Michigan Finds Misdemeanor False Pretenses Conviction Was Properly Admitted For Impeachment Purposes

Michigan Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and

(1) the crime contained an element of dishonesty or false statement, or

 

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

 

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

This Rule is thus actually quite different from Federal Rule of Evidence 609(a), which 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; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

As the recent opinion of the Court of Appeals of Michigan in People v. Rondo, 2010 WL 3565245 (Mich.App. 2010), makes clear, however, they are the same in at least one regard: They allow for witnesses to be impeached via misdemeanor convictions resulting from crimes of dishonesty or false statement.

In Rondo, Russell Rondo was convicted of assaulting, resisting, or obstructing a police office. He thereafter brought a claim for ineffective assistance of counsel, asserting, inter alia, that his trial counsel was ineffective because he failed to object when the prosecution impeached him through evidence of his prior conviction for false pretenses under $200. Rondo claimed that because this was a misdemeanor conviction, i.e., it was for a crime not punishable by imprisonment in excess of one year, it was inadmissible under .Michigan Rule of Evidence 609(a).

The court correctly rejected this argument, finding that the Rule covers (1) felony theft convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement. The result would have been the same under  Federal Rule of Evidence 609(a), which covers (1) all felony convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement.

-CM

The Giant(s) Of Illinois, Take 3: Supreme Court Of Illinois Approves And Promulgates Illinois Rules Of Evidence

Readers of this blog know about Illinois Supreme Court Chief Justice Thomas R. Fitzgerald and his intention to create Illinois Rules of Evidence. He announced this intention on September 6, 2008 and announced the creation of a Special Committee on Illinois Evidence on November 24, 2008. That Committee delegated to me the task of drafting a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. In May 2009, with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull, I submitted a 100 page report to the Committee. The Committee then created Proposed Illinois Rules of Evidence, and, in May 2010, there were public hearings regarding the Proposed Rules.

Today, I am happy to announce that the Supreme Court of Illinois has approved and promulgated Illinois Rules of Evidence, which will take effect on January 1, 2011. Here is the Press Release. And here are the Illinois Rules of Evidence along with a Committee Commentary.

(Hat tip to my colleague Mark Wojcik for the link).

-CM

As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports

Moreover, the Court agrees with the Minnesota Court of Appeals' reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida's testimony because the opinion was unhelpful to the jury. The court noted that “[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition, the court in Ray observed that “[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”...The Court agrees. E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010).

Bloomberg involved an action by the EEOC against Bloomberg, LP.,  in which it alleged

that from approximately February 2002 through the present, Bloomberg engaged in a pattern or practice of unlawful employment practices, including discriminating against Claimants based on sex/pregnancy by: (1) paying them less total compensation after they announced their pregnancy and returned from maternity leave; (2) demoting them in title or in the number of employees directly reporting to them; (3) diminishing their responsibilities and/or replacing them with male employees junior to the Claimants; (4) excluding them from management meetings and otherwise isolating them once they announced their pregnancy and returned from maternity leave; and (5) subjecting them to stereotypes regarding female caregivers when they returned from maternity leave....EEOC further claim[ed] that Bloomberg engaged in unlawful employment practices by retaliating against the named Claimants and other similarly situated female employees who protested the alleged unlawful sex/pregnancy discrimination by reducing their compensation, criticizing their performance, reducing their job opportunities, and threatening to terminate them.

So, let's consider the proposed testimony of Dr. Borgida and the court's ruling and decide whether we agree with the conclusion of the court listed at the top of this post.

As the United States District Court for the Southern District of New York noted in its opinion in Bloomberg:

Dr. Borgida is a professor of psychology and law at the University of Minnesota (Twin Cities) and has a Ph.D. in psychology with a specialization in social psychology and psychology and law from the University of Michigan. Dr. Borgida engaged in what is called a “social framework analysis,” which “uses general conclusions from tested, reliable, and peer-reviewed social science research as a context for educating fact finders about the case facts at hand.”...The analysis “provides an assessment of general causation in a research area in order to inform the fact finders about more specific causation issues associated with a particular case.”...In conducting his analysis, Dr. Borgida reviewed several deposition transcripts as well as Bloomberg personnel materials.

Based upon his review of these materials, Dr. Borgida concluded that

the stereotypes about employees who are mothers and/or pregnant more likely than not influenced the perceptions, evaluations, and decisions about them at Bloomberg. The cultural and organizational context at Bloomberg more likely than not activated the gender stereotype about mothers as less competent and as less agentic and less committed to their careers. Given the subjectivity, discretion, and lack of accountability in the Bloomberg decision making process, stereotypic perceptions more likely than not influenced employment decisions about employees who are mothers and/or pregnant.

So, this was social framework evidence, a topic that I have discussed in a couple of prior posts, including my post about an excellent essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), by University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda. Courts have admitted and excluded such evidence for a variety of reasons, and I leave it up to readers to review the entire opinion of the United States District Court for the Southern District of New York in Bloomberg and this essay to see all of the reasons why the court was troubled by Dr. Borgida's proposed testimony and why other courts have reached different conclusions.

All I want to address is the reasoning used by the court that led this post. Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." The court found that Dr. Borgida's proposed testimony did not meet this standard because, as noted,

“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition,...“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”

Really? So, the average juror watches "Modern Family" and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn't help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn't be helpful! And, I'm sure the average juror watches "Bones," so there should never be any need for testimony by forensic anthropologists.

And while we're at it, I'm certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If "Modern Family" is your go-to source for gender discrimination information, why shouldn't it be your source for how to be a good spouse and parent? Heck, double it up with "The Middle," and you get a full hour of great advice a week.

In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?

-CM

Impeachable Opinion: Southern District Of Illinois Badly Botches Rule 609(a)(1) Analysis

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.

-CM