Sunday, May 22, 2011
Make Me Whole, Take 7: Court Of Appeals Of Minnesota Finds No Problem With Impeachment Via Terroristic Threats Conviction
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony is not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, here, and here), Minnesota courts are not among these courts. The latest example can be found in the recent opinion of the Court of Appeals of Minnesota in State v. Odeneal, 2011 WL 1833018 (Minn.App. 2011).
In Odeneal, Gregory Odeneal was convicted of third-degree criminal sexual conduct. After Odeneal testified at trial, the prosecution impeached him through evidence of his 2005 felony conviction for making terroristic threats. Although Odeneal did not object to the admission of this conviction at trial, it formed the partial basis for his appeal.
In addressing that appeal, the Court of Appeals of Minnesota noted that the district court should have applied five factors derived from State v. Jones, 271 N.W.2d 534 (Minn. 1978), in determining whether the probative value of the prior conviction outweighed its prejudicial effect:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.
The Court of Appeals then noted that the district court did not address these Jones factors, which was erroneous, but it found that "the error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis." According to the court, under this first factor
Appellant argue[d] that his 2005 felony conviction of terroristic threats should have been excluded because it [wa]s not probative of his credibility. But the supreme court has concluded that Minn. R. Evid. 609 "clearly sanctions the use of felonies...not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility."..."[I]mpeachment by prior crime aids the jury by allowing it 'to see "the whole person" and thus to judge better the truth of his testimony.'"...
Appellant argue[d] that commentators and courts in other jurisdictions have criticized the whole-person rationale and have also recognized that jurors tend to misuse prior convictions as propensity evidence, but we do not have the liberty to disregard established Minnesota law on the subject....Moreover, appellant did not challenge the whole-person rationale before the district court, which permits the conclusion that the argument is waived.
So, there you have it, once again. You can check out the court's opinion for the court's discussion of the other four factors, but, as the above analysis makes clear, Minnesota courts always find that the first factor favors admission. I don't see how the making of a terroristic threat in any way supports the inference that a witness is untrustworthy; indeed, a main reason why such a person is punished is the fear that he will follow through on his threat. And yet, Minnesota courts continue to find that any and every conviction has enough impeachment value to satisfy the first factor because it allows the jury to see the witness' whole person.
But, if that's the case, why does Minnesota continue to exclude propensity character evidence? I guess that's a question for another day.