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Univ. of South Carolina School of Law

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Saturday, July 30, 2011

Highway Robbery?: ND Ill Makes 2 Seeming Errors In Deeming Armed Robbery Conviction Inadmissible

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....

In its recent opinion in Blackwell v. Kalinowski, 2011 WL 3046320 (N.D. Ill. 2011), the the United States District Court for the Northern District of Illinois made two seeming errors in applying this Rule to a plaintiff's felony armed robbery conviction.

In Kalinowski, (1) Vincent Blackwell brought an action against Andrew Kalinowski, Pawel Ryszka, and the City of Chicago, alleging that Officers Kalinowski and Ryszka falsely arrested him and that the City of Chicago maliciously prosecuted him; and (2) Angela Ford brought a claim against the same defendants, claiming that Officers Kalinowski and Pawel Ryszka unlawfully searched her vehicle. 

After the jury found in favor of Blackwell (but against Ford), the defendants brought a motion for a new trial under Federal Rule of Civil Procedure 50. According to the defendants, the court erred by precluding them from impeaching Blackwell through evidence of his conviction for felony armed robbery in 1998. According to the United States District Court for the Northern District of Illinois,

Blackwell was convicted of felony armed robbery in 1998 and sentenced to ten years in prison. He was released on September 17, 2007, exactly one month before his arrest in this case. Defendants argue that Blackwell's 1998 robbery conviction should have been admitted under Federal Rule of Evidence 609(a)(1), which provides that a prior conviction may be used to attack the credibility of a witness if the conviction is less than ten years old and the crime was punishable by death or more than one year in prison....Under Rule 609(b), evidence of a conviction 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....Because Blackwell was released in September 2007, his 1998 robbery conviction meets the requirements of Rule 609. However, admission under Rule 609 is subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value....Therefore, we must balance the potential for unfair prejudice against the probative value of the evidence.

Defendants concede that Rule 609 only covers admission of the 1998 robbery conviction for purposes of attacking Blackwell's character for truthfulness. They argue that the probative value of the conviction outweighs the prejudicial effect to Blackwell because Blackwell testified extensively about his church-going habits and diligent care for his sick brother. On its own, we find that the 1998 robbery conviction is simply not probative of the truthfulness of the witness.

The first error made by the court was in holding that "Under Rule 609(b), evidence of a conviction 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." Not true. 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, evidence of these older convictions is rarely admissible, but it can sometimes be admitted. The second seeming error made by the court was its curt conclusion that the robbery conviction was "simply not probative of the truthfulness of the witness." Not at all? Why? On past occasions, the Northern District of Illinois has found armed robbery convictions to be at least somewhat probative of the credibility of witnesses, see, e.g., Coles v. City of Chicago, 2005 WL 1785326 (N.D. Ill. 2005), and that is the conclusion I have seen by every other court to address the issue.

Now, that's not to say that the court's ultimate conclusion to deem the conviction inadmissible was wrong. In fact, I think that the court's ultimate conclusion was correct. I just don't get some of its reasoning.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2011/07/609a1-blackwell-v-kalinowskislip-copy-2011-wl-3046320ndill2011.html

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