EvidenceProf Blog

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

Sunday, March 4, 2012

Going Unnoticed: District Of Colorado Finds Exhibit List Is Insufficient Notice Under Rule 609(b)

Federal Rule of Evidence 609(b) states that

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.

So, what exactly constitutes reasonable written notice under Rule 609(b)(2)? That was a question referenced by the recent opinion of the United States District Court for the District of Colorado in its recent opinion in Doyle v. Denver Dept. of Human Services, 2012 WL 652673 (D.Colo. 2012).

In Doyle, Celeste Doyle brought an action against the Denver Department of Human Services, alleging employment discrimination. At trial, defense counsel began her cross-examination of Doyle by asking, "Ms. Doyle, you have a felony conviction for passing counterfeit $100 bills at a gambling casino, is this correct?" Doyle counsel immediately objected pursuant to Federal Rule of Evidence 609(b), claiming that the conviction was more than ten years old and that any probative value of the evidence was outweighed by the danger of unfair prejudice. The trial court thereafter sustained the objection, finding both that the defendant t did not give adequate notice of its intent to use Rule 609(b) evidence and that the prejudicial effect of the evidence sought to be elicited substantially outweighed its probative value.

After the jury found for the defendant, Doyle moved for a new trial, claiming, inter alia, that she was denied a fair jury trial due to the tainting of the jury "by the wrongful, deliberate and calculated conduct of Defendant's counsel in violating the provisions of Rule 609." The judge initially found that his ruling was correct:

I found at trial that Defendant did not give actual written notice of its intent to use the Rule 609 evidence, but instead relied on the fact that certain exhibits had been listed relevant to the conviction in the Pretrial Order. I further found that this is not sufficient to constitute notice. In support of that finding, I note that the Tenth Circuit in United States v. McConnel, 464 F.3d 1152, 1161 (10th Cir.2006) held that a notice of intent to use prior convictions is required under Fed.R.Evid, 609(b). Indeed, the advance written notice is required "to allow[] parties to formulate trial strategies based upon a court's preliminary ruling" and to prevent unfair surprise....In the instant case, there was no opportunity for the Court to rule on the admissibility of the evidence before trial or even before the question was posed by defense counsel since no advance written notice of intent to use this evidence was provided. My ruling is further enforced by the fact that Plaintiff's counsel was under the impression that defense counsel had agreed before trial to withdraw those exhibits.

This left the question of whether a new trial was warranted. The court began by acknowledging that any questions defense counsel's conduct raised in the jury's mind about Plaintiff's felony conviction "cannot be discounted", despite the fact that the jury was instructed that they were to not consider the question. That said, the court found, inter alia, that it gave a curative instruction and that there was substantial evidence supporting the jury's determination, so it denied Doyle's motion.



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