EvidenceProf Blog

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

Saturday, September 24, 2011

What The Hell Is A Stipulation?: 9th Circuit Affirms Seemingly Questionable Impeachment Instruction

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....

The (only) purpose of impeachment under Rule 609(a)(1) is to show the jury that, based upon the witness' prior conviction(s), he might not be a trustworthy witness. Thus, if a criminal defendant chooses not to testify at trial, his prior conviction(s) cannot be admitted under Rule 609(a)(1) because he would not be a witness, meaning that he could not be impeached. That being the case, I am confused by what (I think) went on in United States v. Williams, 2011 WL 4342648 (9th Cir. 2011). 

In Williams, Johnny M. Williams was convicted of being a felon in possession of a firearm. He later appealed, claiming, inter alia, that the district court erred in instructing the jury that he was impeachable with a prior felony conviction. According to Williams, here is what happened at trial: 


The parties stipulated in the government's case in chief:

MR. BARRY: One of the elements of the offense with which the defendant is charged,...being a felon in possession of a firearm, is that at the time the defendant possessed the firearm, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The United States and the defendant, Johnny Williams, hereby stipulate that on May 30th, 2007, the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.


[T]he district court determined that the government would not be permitted to cross examine or impeach Williams with a 2007 domestic violence conviction, but would be permitted to do so with a separate 2000 prior narcotics conviction which was not the subject of the stipulation....However, after further objection, the district court determined that although he would permit the government to argue that Williams had two prior felony convictions in argument, he would not permit him to be confronted with the second conviction on the stand....

On cross-examination, the following exchange took place:

Q. Well, you specifically would be because you'd been convicted of a prior felony; isn't that right?

A. Yes, I have.

Q. And as an ex-felon, you can't even touch a firearm; isn't that right?

A. That's correct.

Q. And you knew that?

A. Correct.


At the jury instruction conference, defense counsel objected to the inclusion of the "Impeachment, Prior Conviction of Defendant" jury instruction because the only evidence the jury had before it as to Williams' prior conviction was the stipulation of the 2007 conviction, sans any detail or explanation as to the nature of the conviction, and Williams was not impeached with it....

The district court disagreed and provided the following instruction:

IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT You have heard evidence that defendant has previously been convicted of a crime. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial, except to the extent that a prior conviction is an element of the offense. You may also consider the defendant's prior conviction as it may affect the defendant's believability as a witness.

If this indeed what happened, I agree with Williams. Before Williams testified, the district court determined that he could not be impeached through his 2007 domestic violence conviction. Acting in reliance of that decision, he testified. It was then not until the jury instruction conference when the district court reversed itself and concluded that the jury could use the conviction for impeachment purposes. This was simply improper unless Williams did something to cause the court to reverse itself.

Now, I acknowledge that the facts might not have been as Williams claimed them to be. The Ninth Circuit's discussion of the issue was terse, with the court quickly concluding that the district court correctly concluded that the conviction was more probative than prejudicial and then finding that "it [wa]s irrelevant that the conviction came in pursuant to the parties' stipulation rather than through cross-examination." But it was relevant if the district court found that Williams could not be cross-examined/impeached before he testified. And if that's what indeed happened, I don't see how the district court acted properly.



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