EvidenceProf Blog

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

Sunday, May 8, 2011

10 Years Have Got Behind: DNH Finds Rule 609(b) Applies To Conviction Despite Plaintiff's Delay In Suing & Continuance

Federal Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the character for truthfulness of a witness,...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.

Meanwhile, 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.

So, if a witness was convicted (as defined in Rule 609(b)) of a crime of dishonesty or false statement 10 years or less before the subject trial, his conviction is per se admissible to impeach him. But if that conviction was more than 10 years before trial, the conviction is only admissible if its probative value substantially outweighs its prejudicial effect. So, what happens if a plaintiff gets injured at a ski resort, waits 3 years to sue the resort, and then requests a continuance, with the result being that the trial is held just after the 10 year window on his prior conviction has elapsed? According to the recent opinion of the United States District Court for the District of New Hampshire in Herbst v. L.B.O. Holding, Inc., 2011 WL 1655711 (D.N.H. 2011), the answer is that Rule 609(b)'s balancing test applies unless there is evidence that the plaintiff manipulated the calendar or the scheduling process.

In Herbst, in 2006, Edward Herbst suffered injuries such as a broken ankle after falling off an alpine slide at Attitash Bear Peak Resort, a ski area in Bartlett, New Hampshire that offers the slide as a summer recreational activity.

Herbst brought suit against the resort's owner, L.B.O. Holding, Inc. ("Attitash"), asserting claims for strict products liability and negligence. Specifically, he allege[d] that the slide is unreasonably dangerous to its riders, that Attitash was negligent in operating it, and that Attitash failed to adequately instruct and warn Herbst on its proper use. Attitash denie[d] those allegations and assert[ed] that Herbst's own negligence caused the accident.

Before trial, Attitash filed a motion in limine, which asked the court to deem inadmissible for impeachment purposes Herbst prior conviction for felony mail fraud. Attitash was convicted on July 30, 2009 and released from incarceration on (or before) January 1, 2000. Trial is scheduled for May 2011, meaning that Herbst was released from incarceration more than 10 years. But, according to Attitash, the reasons why the trial fell outside the 10 year window were that Herbst waited 3 years to sue and then requested a continuance. The court disagreed, finding that Attitash had "not shown that Herbst acted improperly in either regard, or that he 'manipulated either the calendar or the scheduling process in order to postpone the trial and allow the clock to run on [his] conviction.'"

Nonetheless, the court still granted Attitash's motion. Why? FIrst, the court found that

Herbst's mail fraud conviction ha[d] a direct bearing on his credibility and veracity, and thus a high degree of impeachment value. He demonstrated a willingness to defraud others to improve his own financial situation. Because Herbst is the primary, and in some respects only, witness to his accident and the ride(s) leading up to it (which allegedly affected his state of mind, making him feel the need to slide faster), and because Attitash contends that Herbst himself was at fault for the accident, his testimony is likely to be of great importance at trial, and his credibility is likely to be a particularly salient issue for the jury.

Moreover, the court held that

While the admission of a prior felony conviction always carries some risk of prejudice, that risk is much lower here than it would be, for example, in a criminal case brought against Herbst....

The risk of prejudice is further reduced because Herbst suffered objectively verifiable injuries in the accident (including a broken ankle) and is not the only person who has done so in recent years....Given that evidence, the jury is unlikely to regard the accident itself, or Herbst's decision to bring this lawsuit, as fraudulent, or to reject his claims merely because he has a criminal history. Rather, it is likely to consider Herbst's conviction for the limited, and proper, purpose of determining whether to believe his specific testimony regarding his conduct on the slide, the reasons for it (including his state of mind), and the pain and suffering it caused him.

Therefore, the court was able to conclude tha

the probative value of Herbst's mail fraud conviction substantially outweigh[ed] its prejudicial effect, and that it is in the interests of justice to admit it into evidence.



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