Saturday, October 15, 2011
The Number 23: Eastern District Of Virginia Finds 23 Year-Old Conviction Admissible To Impeach Plaintiff
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.
Furthermore, the Advisory Committee's Note to Rule 609(b) provides that
Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.
In its recent opinion in Salmons, Inc. v. First Citizens Bank & Trust Co., 2011 WL 4828838 (E.D.Va. 2011), the United States District Court for the Eastern District of Virginia found that the defendant could use the plaintiff's 23 year-old criminal fraud conviction to impeach him. So, what were the exceptional circumstances?In Salmons, Salmons, Inc., a grain dealer, brought claims
against First Citizens Bank & Trust, Co., for violations of North Carolina's Unfair and Deceptive Trade Practices Act ("UDTPA") arising out of a loan that Defendant made to Plaintiff in January 2008. Between 2004–2008, Defendant extended more than $3 million in loans to Plaintiff through a series of seventeen separate transactions. Plaintiff claim[ed] that it was damaged by Defendant's taking of a "blanket lien" on its equipment, which prevented Plaintiff from obtaining funding from alternative lenders in order to satisfy its margin calls in February and March 2008.
Previously, in 1988, Jim Salmons (the Salmons in Salmons, Inc.), "was convicted of bank fraud stemming from his submission of false inventory reports to one of his lenders. Related to his conviction, Salmons filed for bankruptcy in 1987." The defendant sought to impeach Salmons through evidence of this conviction at trial, and Salmons filed a motion in limine to exclude this evidence.
The Eastern District of Virginia noted that if Salmons' conviction were not more than 10 years old, it would have been automatically admissible under Federal Rule of Evidence 609(a)(2), which provides that
For the purpose of attacking the character for truthfulness of a witness,...
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
But because Salmons' conviction was 23 years old, it was only admissible if, inter alia, its probative value substantially outweighed its prejudicial effect. According to the defendant, this balancing test was satisfied because
Plaintiff's claim depends on its ability to prove that Salmons had oral conversations with Defendant that contradicted the express language of the Loan Commitment, and thus...Salmons' credibility or lack thereof is a critical issue in this case. Specifically, Defendant claims that because Plaintiff has alleged that Defendant engaged in intentional deception, Plaintiff's claim "hinges on whether the jury believes Jim Salmons' testimony as to his dealings with the lender or the testimony of First Citizens' witnesses."
The Eastern District of Virginia agreed, concluding that
Where a witness' credibility is "highly relevant" to disputed issues in the case, courts have been more willing to admit stale convictions....Moreover, some courts have determined that the risk of unfair prejudice is lower in a civil case than in a criminal case.
Although Salmons' conviction is twenty-three years old, and although there is always a risk of prejudice involved with admitting a prior conviction, we find that Salmons' testimony and credibility are essential to Plaintiff's ability to prove its case. This case presents a rare circumstance in which the probative value of admitting a stale conviction substantially outweighs the potential for unfair prejudice. We thus hold that evidence of Salmons' prior conviction and bankruptcy is admissible for the purposes of impeachment.