Wednesday, February 15, 2012
Federal Rule of Evidence 609(a) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
Meanwhile, according to Federal Rule of Evidence 609(b):
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
In its recent opinion in Ulibarri v. City & County of Denver, 2012 WL 422605 (D.Colo. 2012), the United States District Court for the District of Colorado dealt with several convictions that were covered by either Rule 609(a) or Rule 609(b). So, did it get the analysis right?
In Ulibarri, Debbie Ulibarri brought an action against the City and County of Denver, claiming that sheriff's deputies failed to make required checks on her deaf son, who died while he was in county jail. Before trial, Ulibarri sought to exclude evidence of Ulibarri's prior convictions for theft in 1989, 1990, and 1991. The District of Colorado agreed, concluding that "[t]hese convictions [we]re more than ten years old and should not be admitted. Fed.R.Evid. 609(b) In reaching this conclusion, the Court is unpersuaded by Defendants' arguments that...the probative value of the convictions outweighs their prejudicial impact." This seems like the correct conclusion, and, as noted above, the defendants actually would have needed to prove that the probative value of the convictions substantially outweighed their prejudicial effect to admit them.
Next, the court noted that Ulibarri was convicted of misdemeanor DUI in 2001, making evidence of the conviction inadmissible under Rule 609(a)(1) because it was not punishable by imprisonment in excess of one year and under Rule 609(a)(2) because DUI is not a crime of or false statement.
Finally, the court noted that Ulibarri was convicted of possession of a controlled substance in 2001. According to the court,
The possession charge...is admissible. While Ulibarri was not sentenced to incarceration, it was punishable by more than a year of imprisonment—making it a felony. She was sentenced to three years "to be served [in] the community corrections program," meaning she was released from the criminal system's custody in approximately April 2004. This conviction is not more than ten years old,...and it may be admitted into evidence—but only to impeach Ulibarri's credibility. In reaching this conclusion, the Court rejects Plaintiffs' intimation that admitting evidence of the conviction for this purpose will be more prejudicial than probative.
Structurally, this conclusion is correct, but I don't know that I agree with the substance. Possession of a controlled substance doesn't have much bearing on witness credibility. The conviction was relatively old. And Ulibarri didn't have direct knowledge of what happened to her son in jail, so her credibility wasn't central to the case. Given these facts, I think that the conviction probably should have been deemed inadmissible.