EvidenceProf Blog

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

Tuesday, June 7, 2011

Judge Advocate?: Court Of Appeals Of Indiana Refuses To Become An Advocate For Defendant In Connection With Waived Rule 609(b) Argument

Indiana 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, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement 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.

So, let's say that a defendant is convicted of unlawful possession of a firearm by a serious violent felon in August 2010 without prior notice by the prosecution. And let's say that at trial, the prosecution impeached the defendant with evidence of his 1970 conviction for burglary. Finally, let's say that the defendant later appeals, claiming, inter alia, claiming that the introduction of evidence of his prior conviction deprived him of the presumption of innocence, but, as at trial, he makes no reference to the prosecution's lack of notice. What should the appellate court do? According to the recent opinion of the Court of Appeals of Indiana in Teague v. State, 2011 WL 2138887 (Ind.App. 2011), the answer is "absolutely nothing."

The facts in Teague were as stated above, with James Teague being convicted of unlawful possession of a firearm by a serious violent felon. And here is the totality of the Court of Appeals of Indiana's discussion of the notice issue:

We hasten to note...that Teague was convicted of burglary in 1970. Indiana Rule of Evidence 609 states that convictions more than ten years old from the day of sentence or the day of release from confinement are not admissible for purposes of attacking the credibility of witnesses unless the court determines in the interests of justice that the probative value substantially outweighs the prejudicial effect. Moreover, if a party intends to use such evidence, it must provide the adverse party with sufficient advance written notice. Ind. R. Evid. 609. We have no indication that such notice was provided, but Teague did not object to its introduction at trial and does not challenge its admission on appeal as a violation of Rule 609. We may not become an advocate for Teague, and conclude any argument he has on this basis to be waived.

So, are there grounds to criticize the Court of Appeals of Indiana? Well, I'll start by pointing out that the court did not conclude that no notice was provided; instead, it merely pointed out that there was no indication that notice was provided. So, it is tough to criticize the court for not acting if it was unclear whether there was notice.

But let's assume that it was clear that there was notice. Was the court correct that if it raised the issue sua sponte it would have become an advocate for Teague? I don't see it. Instead, the court merely would have been an advocate for the rules of evidence. Indiana Rule of Evidence 609(b) flatly says that evidence of convictions that are more than ten years old are inadmissible unless there is advance notice. And the reason that advance notice is required is so that the adverse party can develop arguments for why the evidence is inadmissible so that, in turn, the judge can decide whether the evidence satisfies Rule 609(b)'s difficult balancing test. And frankly, it is tough to see a conviction from 1970, and especially one that is not for a crime of dishonesty or false statement, would pass the Rule 609(b) balancing test at a trial held in 2010.



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I disagree. The court WAS being an advocate for the rules of evidence: rule 103, which requires a timely objection in order to preserve the issue for appeal. The safety net for defendants with stupid or ignorant lawyers is the "plain error" rule which, of course, dispenses with the need for an objection. You are asking the appellate court to direct trial judges to exclude inadmissible evidence sua sponte or, at least, lodge the objection for the napping lawyer (or the lawyer who has decided that, tactically, it is in the client's best interest not to object to objectionable evidence - not the situation here, obviously). That's not how our system works.


Posted by: Fred Moss | Jun 8, 2011 9:27:38 AM

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