Wednesday, August 3, 2011
Strength Of His Convictions: 9th Circuit Upholds Admission Of Prior Conviction Evidence Under Rule 703
Federal Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Usually, courts find that the balancing test set forth in Rule 703 is not satisfied and that otherwise inadmissible evidence underlying expert opinion testimony remains inadmissible. That was not the case, however, with the Ninth Circuit in its recent opinion in United States v. Smith, 2011 WL 2877819 (9th Cir. 2011).
In Smith, Curtis Dewayne Smith was convicted of bank robbery. Smith admitted that he robbed the bank but raised an insanity defense at trial, and the prosecution's expert testified "that Smith suffers from antisocial personality disorder (not otherwise specified), as listed in the American Psychiatric Association's Diagnostic and Statistical Manual." The district court then allowed the prosecution to introduce evidence of Smith's prior convictions.
After he was convicted, Smith appealed, claiming, inter alia, that the district court erred by allowing the prosecution to introduce evidence of his prior convictions. The Ninth Circuit disagreed, concluding that
Admission of the remainder of Smith's criminal history was permissible under Fed.R.Evid. 703, which provides for the introduction of otherwise inadmissible evidence if its "probative value in assisting the jury to evaluate the expert's opinion substantially outweighs [its] prejudicial effect." Here, the government's expert's opinion was based in part on her understanding of Smith's prior convictions, so it was helpful to the jury in evaluating her diagnosis. In addition, the district court gave the jurors a thorough limiting instruction that made clear that they were "not to take [the criminal history references] as substantive evidence of what [Smith] really has done or not done in the past but merely as the factors relied upon by this witness in reaching her assessment" of Smith's mental condition....And given that the ultimate issue at trial was Smith's mental condition, and he admitted that he actually robbed the bank, the district court properly discounted concerns about "generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged."
Normally, I am skeptical of any court opinion deeming otherwise inadmissible evidence admissible under Federal Rule of Evidence 703, but I agree with the Ninth Circuit. The unfair prejudice associated with prior crime/conviction evidence is the possibility that the jury will use the evidence to conclude, "Once a criminal, always a criminal," or "Once a bank robber, always a bank robber." But when a defendant admits committing the actus reus of a crime and claims insanity, this fear doesn't exist. Indeed, if the court uses the irresistible impulse test, evidence of prior crimes/convictions could support a defendant's insanity defense. And it seems clear that there is some probative value in an expert explaining to the jury how the defendant's prior crimes led her to the conclusion that the defendant suffers from antisocial personality disorder.