EvidenceProf Blog

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

Tuesday, July 26, 2011

D.C. Follies: D.C. Court Errs In Analysis Of (In)Admissibility Of Plaintiff's Conviction For Distributing A Controlled Substance

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....

Sometimes, courts apply Rule 609(a)(1) correctly. Other times, they badly botch the analysis as was the case with the United States District Court for the District of Columbia in its recent opinion in Jennings v. Thompson, 2011 WL 2976936 (D.D.C. 2011).

In Thompson, Lolita Bobbitt

was the tenant at the premises and the plaintiff was her guest for a Labor Day cookout....On the afternoon of Monday, September 1, 2008, while at the premises, the plaintiff lowered a trash bag to the backyard below the second floor rear balcony....As he did so, the balcony's metal railing broke free and plaintiff fell to the ground approximately ten feet below....The plaintiff suffered multiple fractures to his left wrist that required surgery, and he claim[ed] to be left with a permanent and painful injury that requires additional surgery.

Approximately one month before the incident, on August 5, 2008, a D.C. Building Inspector had inspected the premises and found, inter alia, that the handrail for the balcony at the rear of the premises was not secure....The defendant claim[ed] that she hired a contractor to repair the balcony handrail prior to plaintiff's fall and expected the repair work to be completed by September 3, 2008.

After the fall, the plaintiff brought an action against the defendant, claiming that she "was negligent in allowing a dangerous condition to exist for an unreasonable period of time, without providing a warning of the danger, and that this negligence was the proximate cause of his fall." 

Before trial, the defendant brought a motion in limine "to allow the introduction of evidence of an arrest and criminal conviction of the plaintiff for distributing a controlled substance." The United States District Court for the District of Columbia, however, denied the motion, finding

that evidence of the plaintiff's August 2009 arrest and January 2011 conviction is not directly relevant to or probative of any claims at issue and that associating the plaintiff with serious drug trafficking activity would be highly prejudicial. This civil lawsuit involves a tort claim related to the plaintiff's fall from an allegedly defective balcony railing in September 2008. Since this alleged tort occurred almost a full year prior to the plaintiff's narcotics arrest and over two years prior to his conviction, the arrest and conviction are not directly probative of any issues relating to liability for the tort, especially since the defendant has made no allegation that the plaintiff was under the influence of any drugs or alcohol at the time of the fall from the balcony.

Moreover, the court rejected the defendant's citation to United States v. Ortiz, in which the Second Circuit found that the district court did not err in allowing the prosecution to impeach a defendant charged with selling cocaine through evidence of his prior conviction for selling heroin. According to the United States District Court for the District of Columbia, Ortiz was not analogous because

Ortiz involved a criminal prosecution for "distributing cocaine, possessing cocaine with intent to distribute it, and conspiring to distribute."...In that context, evidence of a prior conviction for selling heroin would plainly be more relevant than in this civil negligence action involving a fall from a balcony railing.

Simply put, the analysis of the United States District Court for the District of Columbia in Thompson is dead wrong. Jurors are supposed to use impeachment evidence as evidence that a witness is untrustworthy on the witness stand. They are not supposed to impeachment evidence as propensity character evidence, i.e., to prove, "Once a drug dealer, always a drug dealer." Thus, the similarity of the the prior conviction in Ortiz and the charges against Ortiz did not increase the probative value of the prior conviction; instead, the similarity merely made the prior conviction more prejudicial. And the dissimilarity of the plaintiff's conviction in Thompson and the nature of his lawsuit did not decrease the probative value of the conviction; instead, the dissimilarity made the conviction less prejudicial.



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